s3.amazonaws.comnos. 13-2500, 14-1120 in the united states court of appeals for the sixth circuit...

Nos. 13-2500, 14-1120

In the United States Court of Appeals for the Sixth Circuit

United States of America, Plaintiff-Appellee,

v.

Kwame Kilpatrick, Bobby Ferguson,

Defendants-Appellants.

On Appeal from the United States District Court for the Eastern District of Michigan

No. 2:10-cr-20403 (Hon. Nancy G. Edmunds)

Brief for the United States Barbara L. McQuade

United States Attorney Andrew Goetz

Assistant United States Attorney 211 West Fort Street, Suite 2001 Detroit, MI 48226 Phone: (313) 226-9522 Email: [email protected]

Case: 13-2500 Document: 54 Filed: 10/09/2014 Page: 1

i

Table of Contents Table of Authorities ................................................................................... iv

Request for Oral Argument ....................................................................... ix

Introduction ................................................................................................ 1

Issues Presented ......................................................................................... 3

Statement of the Case ................................................................................ 4

1. A New Source of Cash ....................................................................... 4

2. Mail and Wire Fraud at the Civic Fund (Counts 18–26, 28, and 30) ............................................................................................... 5

3. Extortion at DWSD (Counts 2–5, 7–9) ............................................. 8

a. Extortion of Inland ................................................................. 10

i. Count 2: Sewer-Lining Contract (CS-1368) ................. 10

ii. Count 3: Sinkhole Repairs (Amendment 4) ................. 12

b. Extortion of Lakeshore .......................................................... 15

i. Counts 7 and 8: Outfalls Contract (DWS-849) and Asbestos Abatement Contract ...................................... 16

ii. Count 9: Water-Main Contract (CM-2014) .................. 19

c. Extortion and Attempted Extortion of Walbridge ................ 21

i. Count 4: Baby Creek and Patton Park (PC-748) ......... 21

ii. Count 5: Oakwood Pump Station (PC-755) ................. 24


ii

4. More to the RICO Conspiracy (Count 1) ........................................ 25

a. Misappropriating the State Arts Grant ................................ 25

b. Threats on CM-2012 .............................................................. 26

c. Bid-Rigging at Heilmann ....................................................... 27

d. Bribery .................................................................................... 27

5. Jury’s Verdict ................................................................................... 29

Summary of the Argument ...................................................................... 30

Argument .................................................................................................. 32

I. Kilpatrick cannot establish an actual conflict, much less the Strickland prejudice that Mickens now requires. .......................... 32

A. Background............................................................................. 32

B. Kilpatrick cannot satisfy either requirement for demonstrating an actual conflict under the Sixth Amendment. ........................................................................... 35

1. Kilpatrick cannot show that his defense team suffered from divided loyalties. .................................... 35

2. Kilpatrick cannot demonstrate that any conflict adversely affected his attorneys’ performance. ........... 40

C. Kilpatrick also cannot establish that any conflict prejudiced him—as he must under Mickens. ........................ 43

II. The case agents’ testimony was properly admitted, and any mistakes were harmless. ................................................................. 45

A. The challenged testimony was proper—mostly for reasons unrelated to Freeman. .............................................. 47


iii

B. Any errors would be harmless as uncontroverted or cumulative testimony in the face of overwhelming evidence. ................................................................................. 58

1. Mail and Wire Fraud at the Civic Fund (Counts 18–26, 28, and 30). ........................................................ 60

2. Extortion of Inland (Counts 2 and 3) ........................... 61

3. Extortion of Lakeshore (Counts 7, 8, and 9) ................ 62

4. Extortion of Walbridge (Counts 4 and 5) ..................... 63

5. RICO Conspiracy (Count 1) .......................................... 64

III. The district court did not abuse its discretion in admitting non-hearsay evidence of the extortion victims’ fear. ..................... 67

A. The extortion testimony was properly admitted under Williams and Collins. ............................................................. 68

B. Any errors would be harmless given the victims’ firsthand testimony and other trial evidence. ...................... 72

IV. The restitution amounts were not an abuse of discretion. ............ 73

Conclusion ................................................................................................. 74

Certificate of Compliance with Rule 32(a) .............................................. 75

Certificate of Service ................................................................................ 76

Relevant District Court Documents ........................................................ 77


iv

Table of Authorities

Cases

Brown v. United States, 411 U.S. 223 (1973) .................................... 58, 72

Burger v. Kemp, 483 U.S. 776 (1987) ....................................................... 35

Cuyler v. Sullivan, 446 U.S. 335 (1980) ............................................ 30, 40

Gillard v. Mitchell, 445 F.3d 883 (6th Cir. 2006) .................................... 44

Harrison v. Motley, 478 F.3d 750 (6th Cir. 2007) ................................... 42

Hempstead Video, Inc. v. Valley Stream, 409 F.3d 127 (2d Cir. 2005) ................................................ 36, 37, 39, 40 Holloway v. Arkansas, 435 U.S. 475 (1978) ................................ 30, 42, 43

Mickens v. Taylor, 535 U.S. 162 (2002) ........................................... passim

Moore v. Mitchell, 708 F.3d 760 (6th Cir. 2013) .......................... 35, 40, 41

Moss v. United States, 323 F.3d 445 (6th Cir. 2003) ............................... 44

Powell v. Bordenkircher, 789 F.2d 425 (6th Cir. 1986) ........................... 45

Rodriguez v. Chandler, 382 F.3d 670 (7th Cir. 2004) ............................. 37

Sanborn v. Parker, 629 F.3d 554 (6th Cir. 2010) .................................... 67

Strickland v. Washington, 466 U.S. 668 (1984) .............................. passim

United States v. Aguwa, 123 F.3d 418 (6th Cir. 1997) ........................... 47

United States v. Albertelli, 687 F.3d 439 (1st Cir. 2012) .................. 55, 57

United States v. Batson, 608 F.3d 630 (9th Cir. 2010) ........................... 73


v

United States v. Blau, 159 F.3d 68 (2d Cir. 1998) .................................. 43

United States v. Boring, 557 F.3d 707 (6th Cir. 2009) ............................ 73

United States v. Burns, 526 F.3d 852 (5th Cir. 2008) ............................. 37

United States v. Childs, 539 F.3d 552 (6th Cir. 2008) ............................ 58

United States v. Collins, 78 F.3d 1021 (6th Cir. 1996) ................... passim

United States v. Diaz-Lopez, 625 F.3d 1198 (9th Cir. 2010) ................... 53

United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) ...................... 55

United States v. Faulkenberry, 614 F.3d 573 (6th Cir. 2010) ................. 51

United States v. Fowler, 535 F.3d 408 (6th Cir. 2008) ............................ 65

United States v. Freeman, 730 F.3d 590 (6th Cir. 2013) ................ passim

United States v. Gadson, 763 F.3d 1189 (9th Cir. 2014) ............ 50, 55, 63

United States v. Garcia, 413 F.3d 201 (2d Cir. 2005) ............................. 59

United States v. Garcia, 994 F.2d 1499 (10th Cir. 1993) ........................ 55

United States v. Goosby, 523 F.3d 632 (6th Cir. 2008) ........................... 45

United States v. Hall, 434 F.3d 42 (1st Cir. 2006) .................................. 50

United States v. Holbrook, 1994 WL 419585 (6th Cir. 1994) ................. 50

United States v. Horton, 847 F.2d 313 (6th Cir. 1988) ........................... 67

United States v. Hyde, 448 F.2d 815 (5th Cir. 1971) .............................. 68

United States v. Johnson, 440 F.3d 832 (6th Cir. 2006) ................... 55, 65


vi

United States v. Johnson, 581 F.3d 320 (6th Cir. 2009) ......................... 72

United States v. Johnson, 831 F.2d 124 (6th Cir. 1987) ......................... 63

United States v. Krzyske, 836 F.2d 1013 (6th Cir. 1988) ........................ 42

United States v. Lanzar, 69 F. App’x 224 (6th Cir. 2003) ....................... 52

United States v. Mack, 1998 WL 773996 (6th Cir. 1998) ....................... 56

United States v. Madison, 226 F. App’x 535 (6th Cir. 2007) .................. 51

United States v. Martinez, 630 F.2d 361 (5th Cir. 1980) ........................ 44

United States v. May, 568 F.3d 597 (6th Cir. 2009) ................................ 73

United States v. Mendez-Ortiz, 810 F.2d 76 (6th Cir. 1986) ................... 59

United States v. Neuroth, 809 F.2d 339 (6th Cir. 1987) ......................... 58

United States v. Novaton, 271 F.3d 968 (11th Cir. 2001) ....................... 41

United States v. Olano, 507 U.S. 725 (1993) ..................................... 45, 58

United States v. Pugh, 404 F. App’x 21 (6th Cir. 2010) .......................... 50

United States v. Robinson, 290 F. App’x 769 (6th Cir. 2008) ................. 37

United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995) .................... 37, 41

United States v. Scales, 594 F.2d 558 (6th Cir. 1979) ............................. 53

United States v. Smith, 601 F.3d 530 (6th Cir. 2010) ............................. 50

United States v. Spikes, 158 F.3d 913 (6th Cir. 1998) ............................ 54

United States v. Street, 614 F.3d 228 (6th Cir. 2010) ............................. 55


vii

United States v. Tasis, 696 F.3d 623 (6th Cir. 2012) .............................. 54

United States v. Tragas, 727 F.3d 610 (6th Cir. 2013) ..................... 48, 49

United States v. Walker, 615 F.3d 728 (6th Cir. 2010) ........................... 70

United States v. Williams, 952 F.2d 1504 (6th Cir. 1991) ...... 2, 31, 67, 68

United States v. Wright, 745 F.3d 1231 (D.C. Cir. 2014) ........................ 37

Statutes

18 U.S.C. § 2 ............................................................................................. 29

18 U.S.C. § 1341........................................................................................ 29

18 U.S.C. § 1343........................................................................................ 29

18 U.S.C. § 1951........................................................................................ 29

18 U.S.C. § 1962(d) ................................................................................... 29

18 U.S.C. § 3563(b)(2) ............................................................................... 73

18 U.S.C. § 3583(d) ................................................................................... 73

18 U.S.C. § 666(a) ..................................................................................... 29

26 U.S.C. § 7201........................................................................................ 29

26 U.S.C. § 7206........................................................................................ 29


viii

Rules

Federal Rule of Evidence 1006............................................... 31, 50, 51, 52

Federal Rule of Evidence 611(a) ............................................ 31, 45, 49, 50

Federal Rule of Evidence 701 ...................................................... 30, 46, 47

Federal Rule of Evidence 803(3) .............................................................. 68

Other Authorities

1 Mallen et al., Legal Malpractice § 5:7 (2014 ed.) ................................. 39

4 Mueller & Kirkpatrick, Federal Evidence § 8:71 (4th ed.) ...... 69, 70, 71

5 Weinstein’s Federal Evidence § 801.11[5][c] ........................................ 68

6 Weinstein’s Federal Evidence § 1006.05[2] .......................................... 50

McCormick on Evidence § 234 (2013) ...................................................... 52


ix

Request for Oral Argument

The defendants are appealing their convictions following a six-month

public corruption trial. The issues on appeal are straightforward, but

the record is massive: approximately 10,000 pages of trial testimony,

with almost 100 witnesses and over 700 exhibits. Because oral

argument would assist the Court in sorting through that record, the

government concurs with the defendants in requesting oral argument.


1

Introduction

During the seven years before he resigned, Kwame Kilpatrick turned

the Detroit mayor’s office into a criminal enterprise. Together with his

codefendant, Bobby Ferguson, Kilpatrick extorted city contractors at

the Detroit Water and Sewerage Department, delaying millions in

DWSD contracts until firms hired or paid off Ferguson. He used his

nonprofit, the Kilpatrick Civic Fund, for personal luxuries and his

mayoral campaign, after promising donors that it would support

Detroit’s neighborhoods, city youth, and crime prevention. He shook

down other businesses too—compromising city government with a “pay-

to-play” system where bribery was not just commonplace, but required.

And when the dust cleared, Kilpatrick’s bank records alone showed over

half a million dollars in unexplained cash.

After a six-month trial, a jury convicted Kilpatrick and Ferguson of a

RICO conspiracy, several counts of extortion, and bribery. The jury also

convicted Kilpatrick of mail and wire fraud at the Civic Fund, along

with several tax charges.

Those convictions should be affirmed. First, Kilpatrick’s conflict-of-

interest claim runs headlong into the Sixth Amendment’s “actual


2

conflict” standard. The district court investigated and resolved the

alleged conflict, and Kilpatrick cannot show any adverse effect on his

representation. Nor can Kilpatrick show Strickland prejudice—as he

must, under Mickens v. Taylor, 535 U.S. 162, 174–76 (2002). Second,

most of the agents’ testimony in the defendants’ briefs was admissible

for reasons unrelated to this Court’s intervening decision in United

States v. Freeman, 730 F.3d 590 (6th Cir. 2013). And the convictions

here did not rest on agents’ interpretations of text messages. Third, the

testimony quoted in the defendants’ remaining evidentiary argument

was non-hearsay evidence of the extortion victims’ fear. It was therefore

properly admitted. United States v. Collins, 78 F.3d 1021, 1036 (6th Cir.

1996); United States v. Williams, 952 F.2d 1504, 1518 (6th Cir. 1991).


3

Issues Presented

I. Alleged Conflict. To prevail on a Sixth Amendment conflict claim,

a defendant must show an “actual conflict”—divided loyalties that

affected his representation. A defendant raising the type of conflict in

this case must also show Strickland prejudice. Here, Kilpatrick’s

retained attorneys walled themselves off from any conflict, the district

court appointed independent counsel as another safeguard, and

Kilpatrick does not specify any effect on either his representation or the

outcome of trial. Can he establish a Sixth Amendment violation?

II. Case Agents’ Testimony. United States v. Freeman, 730 F.3d 590

(6th Cir. 2013), prohibits case agents from broadly interpreting wiretap

recordings to narrate the government’s case. Freeman does not swallow

every other established rule of evidence relating to agent testimony, and

most of the testimony here was admissible under those other rules. The

remaining testimony was proper under Freeman or, at worst,

cumulative of other evidence. Can the defendants demonstrate

reversible error?

III. Extortion Victims’ Fear. Contemporaneous statements to or by an

extortion victim are relevant—and admissible—evidence that the victim


4

feared the defendants. Did the district court abuse its discretion in

admitting those statements in this extortion case?

IV. Restitution. Were the restitution amounts an abuse of discretion?

Statement of the Case

For almost seven years, Kwame Kilpatrick was the mayor of Detroit.

During that time, he abused his position as a public servant—using a

nonprofit to fund personal expenses, extorting city contractors, and

pocketing public money and bribes at every opportunity.

1. A New Source of Cash

Before Kilpatrick became mayor, his banking habits were

unremarkable: a direct-deposited salary, with regular checks and cash

withdrawals for ordinary household expenses. (R.302: Tr., 4788–91,

4796–97). After he took office, those habits changed. (Id., 4768–88). He

stopped withdrawing cash and started depositing it—cash deposits into

his bank accounts, cash payments on his credit card, even cash

purchases of cashier’s checks. (Id.; Ex. KKF-12, App’x 354–55).

Over seven years, those cash deposits totaled over $531,000. (R.302:

Tr., 4791–92; Ex. KKF-12, App’x 354–55). That amount did not include

Kilpatrick’s salary. (R.302: Tr., 4792). It also only included money that


5

investigators could identify from bank records—not any cash that

Kilpatrick spent directly. (R.396: Tr., 13536–37). Nor did Kilpatrick

disclose the cash on his tax returns. (Id., 13525). And Kilpatrick’s bank

records alone showed him spending $840,000 more than he earned from

his salary. (Id., 13541–49; Ex. KKF-29, App’x 357).

2. Mail and Wire Fraud at the Civic Fund (Counts 18–26, 28, and 30)

One of Kilpatrick’s schemes involved the Kilpatrick Civic Fund, a

nonprofit that he created two years before becoming mayor. (R.336: Tr.,

6260–64; Ex. KCF-2, App’x 129–68). Kilpatrick promised donors that

the Civic Fund would improve Detroit neighborhoods, contribute to city

youth, and support crime prevention and economic empowerment. (Exs.

KCF-2, -90, -92 to -95, -97, -99, App’x 129–68, 329–53). Donors relied on

that promise—and would not have contributed money if they had

known Kilpatrick would use the Civic Fund for his personal or

campaign expenses. (R.340: Tr., 6846–51, 6856–66, 6884–89, 6897–901;

R.341: Tr., 7034–40, 7064–73, 7089–95; R.342: Tr., 7147–57).

The Civic Fund served as Kilpatrick’s second checkbook, paying over

$152,000 of his personal expenses. (R.396: Tr., 13550–57; Ex. KKF-31,

App’x 358–59). Kilpatrick used the Civic Fund to pay for vacations in


6

Vail and California. (R.338: Tr., 6557–81; R.385: Tr., 12082–88; Exs.

KCF-14 to -24, App’x 256–303). The Civic Fund paid for a down

payment on his new Cadillac. (R.394: Tr., 13304–09; Ex. KKF-23F,

App’x 356). It paid for his private yoga lessons and new golf clubs.

(R.338: Tr., 6523–36; R.340: Tr., 6946–55; R.385: Tr., 12088–91; Exs.

KCF-10, -11, App’x 252–55). It paid for summer camp for his children.

(R.339: Tr., 6717–21; Exs. KCF-62 to -64, App’x 311–20). Kilpatrick

even used the Civic Fund to buy counter-surveillance equipment to

sweep the mayor’s office for bugs. (R.337: Tr., 6477–502; Exs. KCF-8

to -9E, App’x 245–51).

In addition, Kilpatrick required the Civic Fund’s lead fundraiser,

Emma Bell, to pay him cash kickbacks. (R.335: Tr., 6081–122). The

Civic Fund paid Bell on commission: 10% of whatever she raised. (Id.,

6100). Whenever Bell received a commission check over $5,000,

Kilpatrick required her to split it with him. (Id., 6101–22, 6209–10).

Bell took her commission checks to the bank, withdrew up to $10,000 in

cash each time, and hand-delivered the money to Kilpatrick in a private

room abutting the mayor’s office. (Id.; R.334: Tr., 5970–83; R.381: Tr.,

11457; R.385: Tr., 12094; Exs. EB-2, -3, -6, App’x 47–53). In total, Bell


7

paid Kilpatrick over $200,000 in cash. (R.335: Tr., 6116, 6203). Some of

it came from the Civic Fund; the rest, from Kilpatrick’s mayoral

campaign and inaugural committee—where he and Bell had the same

arrangement. (Id., 6101–22; Ex. EB-6, App’x 49–53).

Kilpatrick also used the Civic Fund to funnel money to his mayoral

campaign. In the Civic Fund’s solicitations, he promised donors: “No

funds of the Civic Fund are donated to any political campaign.” (Exs.

KCF-90, -92 to -95, -97, -99, App’x 329–53). He said the same thing on

camera: “We haven’t used one penny, one penny of the Civic Fund in

this campaign because it’s not allowed by law.” (Ex. KCF-1A (video

exhibit, on file with the clerk’s office)).

In reality, the Civic Fund paid approximately $150,000 of the

campaign’s expenses. (Exs. KCF-3 to -7, -31, -35, -36, App’x 169–244). It

paid for the mayoral campaign’s polling. (R.336: Tr., 6308–25; R.337:

Tr., 6433–44; R.385: Tr., 12053–59, 12080–83; Exs. KCF-3, -35, -36,

App’x 169–204, 239–44). It paid for the campaign’s focus groups. (R.336:

Tr., 6325–33; R.385: Tr., 12059–61; Ex. KCF-4, App’x 205–24). It paid

for the campaign’s public relations strategists. (R.337: Tr., 6374–82,

6411–19; Exs. KCF-5 to -7, App’x 225–34).


8

As Kilpatrick came closer to resigning as mayor, he drained the Civic

Fund further. When the local news media began covering one of his

scandals, Kilpatrick spent almost $100,000 of Civic Fund money to hire

a nationally known crisis manager. (R.340: Tr., 6915–24; Ex. KCF-54,

App’x 306–08). He sent $50,000 to his father. (R.339: Tr., 6721–24; Ex.

KCF-55, App’x 309–10). He sent another $110,000 to his former chief of

staff. (R.339: Tr., 6700–03; Ex. KCF-47, App’x 304–05). And after

Kilpatrick resigned, he used the Civic Fund to pay his moving costs,

along with his rent and security deposit at a new apartment. (R.339:

Tr., 6746–60; R.341: Tr., 7047–56; Exs. KCF-78, -80, -81, -85, App’x

321–28).

3. Extortion at DWSD (Counts 2–5, 7–9)

The Detroit Water and Sewerage Department is the third-largest

water and sewer department in the country, servicing virtually all of

southeast Michigan. (R.348: Tr., 7485–88). Because of a longstanding

dispute with the EPA, DWSD spent decades under court supervision.

(Id., 7487–88). As part of that supervision, a federal judge named

Kilpatrick “special administrator,” permitting Kilpatrick to approve

DWSD contracts without scrutiny from the Detroit city council. (Id.,


9

7490–91, 7508; Ex. IN1-1, App’x 69–71). And with an annual budget of

$1.2 billion, DWSD provided a wealth of opportunities. (R.348: Tr.,

7583).

Ferguson was a DWSD contractor—and Kilpatrick’s best friend.

(R.385: Tr., 12136–43). Early on, Kilpatrick instructed his top-ranking

cabinet officials to “help Bobby” get city business “at every opportunity.”

(Id., 12143–44). To further help his cause, Kilpatrick hand-picked Victor

Mercado as DWSD’s new director. (R.374: Tr., 10464–67; Exs.

IN1-1, -1B, App’x 69–82). Mercado served at Kilpatrick’s discretion,

oversaw all of DWSD’s contracts, and later pleaded guilty to

participating in an extortion conspiracy. (Ex. IN1-1B, App’x 72–82;

R.247: Plea Agreement, 1831–38).

With Kilpatrick’s backing, Ferguson secured over $83 million in

DWSD contracts. (Ex. BFF-5, App’x 7–11). At the same time, Ferguson

withdrew over $2.5 million in cash from his bank accounts. (R.399: Tr.,

13865–74; Ex. BFF-8, App’x 12–24). Investigators found more than $1

million in cash and cashier’s checks stuffed in Ferguson’s safes. (R.399:

Tr., 13835–51; Exs. BFF-10H, -11D, App’x 25–26). Ferguson and

Kilpatrick described where other cash went:


10

Ferguson: . . . i am famous now.just need to get some money.

Kilpatrick: Lol! Right. Let’s get you some.

Ferguson: Us

(Ex. BCD-9, App’x 1–2). In other text messages, they said the same

thing—referring to “loot” and “cash” that Ferguson had ready for

Kilpatrick. (Exs. BFF-13 to -15, App’x 27–31). And like Emma Bell,

Ferguson regularly disappeared with Kilpatrick into the private room

next to the mayor’s office. (R.385: Tr., 12137).

a. Extortion of Inland

One of Kilpatrick’s and Ferguson’s first victims was Inland Waters, a

Detroit-based water and sewer contractor. (R.370: Tr., 10027–30). For

years, DWSD had contracted with Inland to re-line the city’s aging

sewer system. (R.360: Tr., 9184–85). Before that contract expired,

Inland bid on a successor contract called CS-1368. (Id., 9184–85, 9198–

202).

i. Count 2: Sewer-Lining Contract (CS-1368)

CS-1368 was a $50 million contract. (R.370: Tr., 10031–32). Inland

was awarded the contract, received DWSD approval, and executed the

documents. (R.360: Tr., 9198–202, 9213–14; R.382: Tr., 11639–40). All

Inland needed was a “start work” letter. (R.370: Tr., 10034–35).


11

But then—at Kilpatrick’s direction—his chief administrative officer,

Derrick Miller, told Inland’s executives that they needed to hire

Ferguson. (R.386: Tr., 12204–06). Inland’s executives refused, because

Inland had already lined up its subcontractors. (Id., 12206). The

contract stopped moving. (R.370: Tr., 10034–35).

Inland’s executives soon heard that the contract was held up in the

mayor’s office. (Id.; R.372: Tr., 10282–83, 10290–91). Anthony Soave,

the owner of Inland’s parent corporation, arranged a meeting with

Kilpatrick. (R.370: Tr., 10035; Ex. IN1-3, App’x 83). Kilpatrick told

Soave that Inland “had the wrong subcontractor,” and needed to use

Ferguson. (R.370: Tr., 10035–36). Faced with losing a $50 million

contract, Soave caved—agreeing to substitute Ferguson for Inland’s

existing minority subcontractor. (Id., 10036–39).

But Inland’s negotiations with Ferguson proved difficult. (R.372: Tr.,

10294–313). He refused to accept any financial risk and demanded a

guaranteed profit margin. (Id.). Inland’s executives, however, knew that

they were “essentially in a forced marriage”—and that Ferguson “had

been chosen by Mayor Kilpatrick as [Inland’s] subcontractor.” (Id.,

10299). With that “constant threat” lurking in the background, they


12

came to terms with Ferguson and added him as a subcontractor. (Id.,

10315, 10320; Ex. IN1-19, App’x 86).

But Ferguson’s work was so poor that DWSD sent Inland a “stop-

work” order, demanding that Ferguson stop working until he fixed his

deficiencies. (R.372: Tr., 10315–18; Ex. IN1-31, App’x 87–88). Confused

by DWSD’s order, Soave went back to see Kilpatrick. (R.372: Tr.,

10322). He asked, “Is Bobby still your guy?” (Id., 10258). Kilpatrick

confirmed, “Yes, he’s still my guy.” (Id.). So Inland kept working with

him. (R.370: Tr., 10049).

Ferguson, however, did not like being blamed for his bad work.

(R.372: Tr., 10318). He complained about being “disrespected”—that

Inland’s executives “did not give him the credit that he deserved for

[Inland] having the contract.” (Id., 10319). And whenever Inland

rebuked Ferguson—or considered cutting him off—he fired back with

threats, emphasizing to Inland’s executives “that the risk of losing the

work . . . was hanging over [their] heads.” (Id., 10320).

ii. Count 3: Sinkhole Repairs (Amendment 4)

In August 2004, a sewer line collapsed in Sterling Heights, forming a

massive sinkhole in the middle of 15 Mile Road. (R.391: Tr., 12873; Ex.


13

IN1-32A, App’x 89). After meeting with Victor Mercado, Kilpatrick

immediately texted Ferguson about their new opportunity: “You got to

get with Victor on this Sterling hts job.” (Exs. IN1-33, -34A, App’x 90–

93). Ferguson, Kilpatrick, and Mercado then coordinated on how

Ferguson could move in. (R.374: Tr., 10433–34; Exs. IN1-34, -39, -68,

App’x 94–98). And shortly after Ferguson arrived at the sinkhole to

start working, Kilpatrick signed a special administrative order to add

the sinkhole repairs to Inland’s (and Ferguson’s) existing contract, CS-

1368. (R.360: Tr., 9239; R.391: Tr., 12879–85).

The repairs lasted over a year. (R.360: Tr., 9242). Finally, in August

2005, DWSD prepared a $12 million amendment to CS-1368—known as

Amendment 4. (Ex. IN1-46, App’x 99–109). DWSD then sent

Amendment 4 to the mayor’s office. (Ex. IN1-52, App’x 113–14).

Kilpatrick refused to sign it. (R.379: Tr., 11149; R.386: Tr., 12209–

10). He explained to Miller that “Inland hadn’t paid Bobby”—so

Amendment 4 “was not going to move forward until he received his

payment.” (R.386: Tr., 12209–10). When Inland and another

subcontractor, Insituform, contacted the mayor’s office, the answer was


14

the same: “You need to talk to Bobby.” (R.379: Tr., 11154–57; R.372: Tr.,

10325–27; R.386: Tr., 12211–14; Exs. IN1-47, -50, -66, App’x 110–12).

Ferguson told Inland’s and Insituform’s executives that “the

amendment wouldn’t move” unless they increased his fees. (R.379: Tr.,

11153–54; R.386: Tr., 12209–10). He stated that Inland had been

chosen for the sinkhole repairs “only because of him,” that “he had not

been given appropriate credit for getting Inland its work,” and that

Inland had “some things to fix.” (R.372: Tr., 10319, 10328–29). And at

another meeting, Miller stopped by during negotiations to remind

Inland of Ferguson’s special status. (R.386: Tr., 12215–16).

Finally, with “this sword dangling over their head[s],” Inland and

Insituform succumbed to Ferguson’s terms. (R.372: Tr., 10329–31;

R.379: Tr., 11167–68; R.380: Tr., 11302–07). Kilpatrick then signed a

special administrative order, authorizing Amendment 4. (Ex. IN1-46,

App’x 99–109). In total, Ferguson received over $20 million on CS-1368,

with approximately $3 million coming from the sinkhole repairs. (Exs.

BFF-5, IN2-12, App’x 7–11, 115).


15

b. Extortion of Lakeshore

In 2002, with Ferguson as its subcontractor, Inland bid on a $10

million sewer-repair contract, CS-1361. (R.356: Tr., 8676, 8686).

Another contractor, Lakeshore Engineering, also submitted a bid.

(R.361: Tr., 9277; Ex. LS1-9B, App’x 368–73). Lakeshore won the

bidding. (R.361: Tr., 9277–81; Exs. LS1-9, -9A, -10, App’x 360–67).

Ferguson then paid a visit to Tom Hardiman, one of Lakeshore’s

executives, and demanded 25% of the contract. (R.352: Tr., 8088–92).

Hardiman said no—Lakeshore already had its team together. (Id.,

8092). Ferguson replied, “It still has to go across the mayor’s desk.”

(R.354: Tr., 8352; R.352: Tr., 8093–94).

Kilpatrick ordered Mercado to hold up the contract. (R.386: Tr.,

12222–24; Ex. LS1-11, App’x 374). Concerned about the delay,

Lakeshore’s executives flooded city hall with calls and emails—and

were met with silence. (R.352: Tr., 8095–98; R.356: Tr., 8690–93; Exs.

LS1-13, -17, -19, App’x 375–77). When Hardiman finally met with

Miller, Kilpatrick instructed Miller “to listen and be vague.” (Ex.

LS1-16, App’x 378; R.386: Tr., 12226–29). All the while, Ferguson and

Kilpatrick considered the best approach to benefit Ferguson—such as


16

adding CS-1361 to Inland’s and Ferguson’s existing contract, CS-1368.

(Exs. IN1-15, LS1-12, App’x 84–85).

Finally, at Ferguson’s request, Kilpatrick canceled CS-1361. (R.386:

Tr., 12229–31). DWSD then gave that same sewer-repair work to Inland

and Ferguson under CS-1368. (R.360: Tr., 9228–31; R.361: Tr., 9295–

97).

i. Counts 7 and 8: Outfalls Contract (DWS-849) and Asbestos Abatement Contract

Lakeshore’s executives had learned their lesson from the cancelation

of CS-1361. (R.352: Tr., 8139; R.356: Tr., 8696–701). They decided that

next time, Lakeshore would team up with Ferguson. (R.352: Tr., 8127–

28).

That next time was DWS-849, a $19.9 million contract to repair the

outfalls where overflow stormwater drains into the Detroit River. (Id.,

8123–24; R.355: Tr., 8553; R.356: Tr., 8649–52). One of the

subcontractors on Lakeshore’s bid was Lanzo—a company that

specialized in relining the interior of an outfall without excavating the

entire pipe. (R.352: Tr., 8124–27; R.356: Tr., 8652–64, 8704–07).

Ferguson became Lakeshore’s excavation contractor. (R.352: Tr.,

8125–26). Not because of his expertise; rather, Lakeshore did not want


17

to lose another contract. (Id., 8127–31; R.355: Tr., 8576–77; R.356: Tr.,

8707–08). And when one of Lanzo’s executives complained about

Ferguson’s share of the work, Hardiman responded that there would be

no contract without Ferguson. (R.355: Tr., 8577–78). Ferguson gloated

about Hardiman’s statement—“no deal without me”—in a text message

to Miller:

Ferguson: Lanzo is pissed off about me being here about this job, and I mean pissed.

* * *

Only lanzo, tom is here saying the same thing you are saying and telling them no deal without me, he gotten smart, I am just sitting here listening.

(Ex. LS2-2, App’x 380).

Soon after Lakeshore won the contract, Ferguson demanded a

greater cut of it. (R.352: Tr., 8135–39; R.356: Tr., 8715–16). Lakeshore’s

executives did not want to risk losing the contract. (R.352: Tr., 8139). So

they paid Ferguson $1 million for doing no work. (Id., 8139–41; R.356:

Tr., 8716–20).

But that wasn’t enough. In September 2005, Lakeshore sought a $6–

$8 million amendment (or “change order”) to DWS-849 to rehabilitate

six additional outfalls. (R.352: Tr., 8143–46; R.356: Tr., 8721–22). At the


18

same time, Lakeshore also sought a $1.5 million change order on an

existing asbestos abatement contract. (R.352: Tr., 8143–46; R.356: Tr.,

8721).

Ferguson had not done any work on either contract. (R.352: Tr.,

8144–47; R.357: Tr., 8761–63). Nevertheless, he demanded a 5%

payment for each change order, totaling approximately $450,000.

(R.352: Tr., 8146–47). And Lakeshore paid, because it “did not want any

of [its] work to be stopped.” (R.357: Tr., 8765–66; R.352: Tr., 8147–48).

To hide these “no show” payments, Ferguson submitted phony

invoices from Johnson Consultant Services, a company set up in his

wife’s name. (R.352: Tr., 8150–58; R.357: Tr., 8742; Ex. LS2-17, App’x

381). Lakeshore’s executives paid the invoices through Lakeshore’s real

estate affiliate, so that their employees would not start asking

questions. (R.352: Tr., 8158–61; R.356: Tr., 8723–35). In total,

Lakeshore paid Ferguson over $1.7 million—even though Ferguson

performed no work. (R.352: Tr., 8157–58; R.357: Tr., 8742–66).


19

ii. Count 9: Water-Main Contract (CM-2014)

In 2006, DWSD approved two contracts for replacing water mains in

Detroit. (R.348: Tr., 7539–40). They were sibling contracts: CM-2015

covered the city’s west side; CM-2014, the east side. (R.357: Tr., 8766).

Lakeshore again wanted Ferguson on its bid, so that it would not

risk losing another contract. (Id., 8772–74). Ferguson, however, was

already bidding on the contracts as part of a joint venture called Detroit

Program Management (DPM). (Id.; R.348: Tr., 7541–44). He told

Lakeshore to add a subcontractor called E&T Trucking—a small

construction firm that was paying Ferguson a “fee.” (R.352: Tr., 8171–

73; R.357: Tr., 8772–77; R.379: Tr., 11238–39).

Neither DPM nor Lakeshore won the bidding. (R.348: Tr., 7544–50).

DPM finished third on both contracts; Lakeshore, fifth. (Id.; Exs. LS3-4,

-6, App’x 382–83). But without telling the bidders, Mercado ordered

DWSD’s employees to alter the methodology for ranking the bids—

adopting a new, average-cost methodology that DWSD rarely used and

made no sense for this type of contract. (R.348: Tr., 7558–62; R.359: Tr.,

9060–70). At the same time, Kilpatrick ordered a city official to revoke a

rival contractor’s certification as a Detroit-headquartered business,


20

causing the contractor to lose points from its bid. (R.348: Tr., 7556–58;

R.361: Tr., 9358–80; R.367: Tr., 9538–47, 9584–96). With those changes,

DPM won CM-2015, and Lakeshore won CM-2014. (R.348: Tr., 7558–64;

R.359: Tr., 9054–55, 9087–91; Exs. LS3-13, -14,-16 to -18, -36, App’x

384–98).

Soon after the bid-rigging, Ferguson demanded that Lakeshore pay

him for “management services.” (R.352: Tr., 8177–78; R.357: Tr., 8778–

83). Rather than risk losing the contract, Lakeshore agreed. (R.352: Tr.,

8178–82; R.357: Tr., 8783–85). Ferguson did not provide any

management services. (R.352: Tr., 8182–89; R.357: Tr., 8785–94). But

Lakeshore still paid him over $700,000. (R.357: Tr., 8792–94).

Later, when a change order added millions in new work to CM-2014,

Ferguson demanded more. (R.352: Tr., 8189–93; R.357: Tr., 8794–98).

He threatened Lakeshore’s executives, saying, “I’ll get your contract

stopped,” and “I will shut down your job.” (R.352: Tr., 8192; R.357: Tr.,

8796). Once again, Lakeshore gave in. (R.352: Tr., 8189–98; R.357: Tr.,

8799–800; R.379: Tr., 11226–32). In total, Ferguson received over $4.1

million on CM-2014. (Ex. BFF-5, App’x 7–11).


21

c. Extortion and Attempted Extortion of Walbridge

Ferguson and Kilpatrick also targeted a Detroit-based general

contractor called Walbridge Aldinger. (R.379: Tr., 11168–205). In

August 2002, Walbridge hired a politically connected consultant,

Bernard Parker, as its director of business development. (Id., 11139–

40). When Ferguson found out, he texted Kilpatrick: “Bernard parker

work for walbridge now . . . we can use this to our advantage.” (Ex.

WA1-1, App’x 502).

i. Count 4: Baby Creek and Patton Park (PC-748)

That advantage arrived only weeks later, when DWSD advertised a

$75 million contract, PC-748, to rebuild the sewers at Baby Creek and

renovate the recreation center at Patton Park. (R.379: Tr., 11169–75).

Ferguson informed Kilpatrick and Miller that he wanted to be part of it.

(R.386: Tr., 12242–43). But when he bid to be one of Walbridge’s

subcontractors, he lost out. (R.390: Tr., 12824–25; Ex. WA1-3, App’x

504–06). He texted Kilpatrick: “Walbridge is not playing ball . . . .

[They] need to be made believers that they are not in control.” (Ex.

WA1-2, App’x 503).


22

On February 6, 2003, Walbridge submitted its bid—and the bids

were very close. (R.379: Tr., 11172–73; R.380: Tr., 11370–75).

Walbridge’s executives were confident that Walbridge would win the

contract once DWSD equalized the bids and credited Walbridge for

being headquartered in Detroit. (R.380: Tr., 11370–75; see generally

R.348: Tr., 7492–500). But soon, they became concerned that DWSD

would not equalize the bids correctly. (R.379: Tr., 11180–82).

Parker hurried to the mayor’s office to speak with Miller. (Id., 11182,

11185–86). At Kilpatrick’s direction, Miller asked Parker, “Well, is

Bobby in on the deal?” (Id., 11182–83; R.386: Tr., 12240–43). Miller

then suggested that Walbridge hire Ferguson to renovate Patton Park.

(R.386: Tr., 12240–43). Parker responded that Walbridge already had

its team together. (R.379: Tr., 11182–83; R.386: Tr., 12242). Miller

replied, “Well, see if you can put him in on the deal.” (R.379: Tr., 11183–

84).

Parker relayed Miller’s comments to Walbridge. (Id., 11185–86).

Walbridge’s executives were upset. (Id., 11186–87). But they decided to

include Ferguson because they were worried about losing the contract.

(Id., 11193).


23

They began negotiating with Ferguson. (Id., 11194; R.386: Tr.,

12243–49; Exs. WA1-6, -8, App’x 507–09). Meanwhile, DWSD

tentatively awarded the contract to Walbridge, despite pending bid

protests from the other firms. (R.380: 11376–78; R.386: Tr., 12249–50;

Ex. WA1-9A, App’x 510–11). Mercado, however, delayed the final

results—ordering city officials “to hold off on sending out [the] response

to the bid protests until Mr. Mercado calls Mr. Miller in the Mayor’s

Office.” (Exs. WA1-10, -11, App’x 512–13; R.386: Tr., 12250–53).

The next day, Walbridge yielded—agreeing to a $12.7 million

subcontract with Ferguson. (Ex. WA1-14, App’x 514; R.379: Tr., 11194–

98). The contract was only one page long. (Ex. WA1-14, App’x 514). It

was handwritten—an “unusual” characteristic for a $12.7 million

construction contract. (R.379: Tr., 11197; Ex. WA1-14, App’x 514). It

also covered the $10 million of work at Patton Park, the same work that

Miller had previously suggested. (R.386: Tr., 12253–54; Ex. WA1-14,

App’x 514). In another “unusual” step, Ferguson was not required to

post a performance bond. (R.379: Tr., 11196; Ex. WA1-14, App’x 514).

A week later, Mercado recommended that Walbridge win the

contract. (Ex. WA1-16, App’x 515). Kilpatrick then approved the


24

contract in his role as special administrator. (Ex. WA1-18, App’x 517–

18). Ultimately, Ferguson received almost $13.5 million on the project.

(Ex. BFF-5, App’x 7–11).

ii. Count 5: Oakwood Pump Station (PC-755)

The Oakwood Pump Station was a $150 million contract. (R.379: Tr.,

11205–06). Ferguson demanded that Walbridge bid on it with him in a

joint venture. (Id., 11206–07). He told Walbridge’s executives that he

wanted 30–35% of the deal, but without obtaining a performance bond

or assuming any risk. (Id., 11206–10). Walbridge’s executives refused,

because they would have been forced to bond the whole project and

assume all of the risk. (Id.).

Ferguson told Walbridge’s executives that Mercado would be calling

and instructing them to partner with Ferguson. (Id., 11210–12). To

increase the pressure on Walbridge, Ferguson also set up a meeting

between Kilpatrick and Walbridge’s CEO at the mayor’s mansion so

they could discuss the contract. (R.379: Tr., 11213–15; Ex. WA2-1A,

App’x 516). And Ferguson arranged for DWSD to delay the bid date, so

Mercado would have time to speak with one of Walbridge’s executives.

(R.379: Tr., 11215–17).


25

Still, Walbridge refused to accept Ferguson’s terms. (Id., 11217).

Ferguson told Parker that he was looking at other contractors and

would get work from whichever contractor won the project. (Id., 11217–

18). Walbridge and Ferguson never reached a deal. (Id.).

4. More to the RICO Conspiracy (Count 1)

Kilpatrick did not stop with the Civic Fund or DWSD. From the very

beginning of his term as mayor (and even before it), Kilpatrick teamed

up with Ferguson to line their pockets—misappropriating state grant

money, threatening contractors, and rigging bids. All the while,

Kilpatrick pocketed bribe after bribe from city vendors.

a. Misappropriating the State Arts Grant

Even before he became mayor, Kilpatrick funneled public money to

Ferguson. As state representative, Kilpatrick procured a $500,000

community grant for “Detroit 3D”—a nonprofit set up by Ferguson’s

wife. (R.330: Tr., 5396–401, 5424–30; R.331: Tr., 5557–65; R.385: Tr.,

12039–41; Exs. SG-7, -11, App’x 431–35). Detroit 3D promised to fund

“academic assistance” for young people and “meals and assistance” for

seniors. (Ex. SG-11, App’x 432–35). Instead, when Ferguson received

the first half of the grant, he wired $100,000 to a corporation set up by


26

Kilpatrick’s wife. (R.331: Tr., 5576–79; R.332: Tr., 5794–95, R.334: Tr.,

5967–70; Exs. SG-8A, -17, -32, App’x 436–76). He used the rest of the

money to renovate his offices and buy a house. (R.332: Tr., 5677–730,

5766–88; Exs. SG-24A to -25B, -32, -34A to -34D, App’x 474–501). And

when state budget officials asked questions, Ferguson sent back

falsified invoices. (R.332: Tr., 5677–730; Exs. SG-17, -24A to -25B, -32,

-34A to -34D, App’x 443–501).

b. Threats on CM-2012

Early in Kilpatrick’s administration, a firm called DLZ won a

contract, CM-2012, to oversee water-main replacement in downtown

Detroit. (R.348: Tr., 7509–14). When DLZ collected bids from other

contractors, Ferguson finished ninth out of ten bidders. (Id., 7517–20;

Ex. DLZ-10, App’x 43–46). But DLZ still agreed to give Ferguson work,

because Mercado told them that it “would be well received by the

mayor.” (R.350: Tr., 7759–61). Ferguson, though, was DLZ’s most

difficult contractor. (Id., 7761–62). When DLZ complained to Mercado,

Ferguson threatened: “Don’t worry about the director”—“you need to

worry about me.” (Id., 7762–64).


27

c. Bid-Rigging at Heilmann

Johnson Akinwusi was a contractor who bought Kilpatrick $4,800 in

suits in the hope of winning city contracts. (R.376: Tr., 10703–08). Soon

after, Ferguson’s company offered to partner with Akinwusi on a bid for

renovating the Heilmann Recreation Center. (Id., 10708–14). Their

team finished fourth out of five bidders. (R.377: Tr., 10914–32; Ex.

HLM-8, App’x 54–55). Because Kilpatrick’s chief of staff, Christine

Beatty, controlled the decision, they won anyway. (R.377: Tr., 10985–

11003; R.378: Tr., 11086–97; Exs. HLM-9, -12 to -15, App’x 56–67).

Ferguson’s company then received $161,000 on the contract, even

though his staff performed very little work. (R.376: Tr., 10719–21; Exs.

BFF-5, HLM-32, App’x 7–11, 68). And when the city project manager

questioned how Ferguson’s employees could work 40-hour weeks at

Heilmann and 40-hour weeks at another site simultaneously, Ferguson

threatened her job. (R.377: Tr., 10934–50).

d. Bribery

Kilpatrick also took bribes from city vendors. Jon Rutherford gave

Kilpatrick thousands in cash, $10,000 worth of suits from Dubai, and

championship boxing tickets in Vegas—all in exchange for Kilpatrick’s


28

support to develop and finance a casino. (R.342: Tr., 7225–51, 7268–77;

R.347: Tr., 7321–28; Exs. RUTH-15, -16, -19, -20, App’x 416–29). Karl

Kado, a contractor at the city’s convention center, paid Kilpatrick

thousands in cash bribes to protect his cleaning and electrical contracts.

(R.368: Tr., 9661–87; R.385: Tr., 12110–24; Exs. COBO-12, -14, App’x

33–34). Derrick Miller passed along thousands more to Kilpatrick in

cash bribes from the city’s property-management contractor. (R.386: Tr.,

12125–33). Miller also slipped Kilpatrick $10,000 in the men’s room at

an Asian restaurant—a cash kickback for the restaurant’s financing

from the city’s pension funds. (R.387: Tr., 12309–22). And Anthony

Soave gave Kilpatrick an expensive watch, tickets to the 2004 NBA

Finals, and almost $400,000 worth of free flights on Soave’s private jet,

all to avoid risking Inland’s contracts. (R.370: Tr., 10054–74; Ex. JET-3,

App’x 124–28).


29

5. Jury’s Verdict

After a six-month trial, the jury convicted Kilpatrick of 24 counts:

Count Description Statute 1 RICO Conspiracy 18 U.S.C. § 1962(d) 2 Extortion of Inland on the Sewer-

Lining Contract (CS-1368 ) 18 U.S.C. §§ 1951 and 2

3 Extortion of Inland on Amendment 4 (CS-1368)

4 Extortion of Walbridge on the Baby Creek Contract (PC-748)

5 Attempted Extortion of Walbridge on the Oakwood Pump Station (PC-755)

9 Extortion of Lakeshore on the Water-Main Contract (CM-2014)

17 Bribery 18 U.S.C. §§ 666(a) and 2

18–26, 28, 30

Mail and Wire Fraud at the Civic Fund 18 U.S.C. §§ 1341 and 1343

31–35 False Tax Returns 26 U.S.C. § 7206 36 Tax Evasion 26 U.S.C. § 7201 (R.277: Verdict Form, 2213–34). The jury convicted Ferguson of nine

counts—seven that mirrored Kilpatrick’s verdict (counts 1-5, 9, and 17),

plus two other extortion counts:

Count Description Statute 7 Extortion of Lakeshore on the Outfalls

Contract (DWS-849) 18 U.S.C. §§ 1951 and 2 8 Extortion of Lakeshore on the Asbestos

Abatement Contract (Id.). Both defendants timely appealed.


30

Summary of the Argument

First, Kilpatrick cannot demonstrate an actual conflict from his

attorneys’ “of counsel” affiliation with a law firm that was suing him in

a separate civil case. The attorneys carefully erected an ethical wall to

prevent any exchange of confidential information or division of loyalties.

The district court also appointed independent counsel to safeguard

Kilpatrick’s interests further. And Kilpatrick does not specify how the

“of counsel” affiliation adversely affected his representation here, as he

must to prevail. Nor does he show Strickland prejudice, as he must

under Mickens v. Taylor, 535 U.S. 162, 174–76 (2002). Instead, he

invokes Holloway’s automatic reversal rule and Cuyler’s presumption of

prejudice—neither of which applies to conflicts other than joint

representation of codefendants. Mickens, 535 U.S. at 168, 174–76.

Second, the defendants’ primary evidentiary argument does not

demonstrate reversible error. This Court’s recent decision in United

States v. Freeman, 730 F.3d 590 (6th Cir. 2013), only prohibited certain

agent interpretations of wiretap recordings under Federal Rule of

Evidence 701. It did not prohibit all agent testimony. And here, most of

the testimony in the defendants’ briefs was admissible under other


31

rules of evidence. That testimony included background evidence;

publishing exhibits; short references to previously admitted evidence

under Rule 611(a); summaries of voluminous documents or recordings

under Rule 1006; testimony about omissions from records, also under

Rule 1006; and objections that the defendants outright waived. The

remaining testimony was also admissible, even after Freeman. That

testimony primarily involved uncontroverted names or nicknames, the

very type of lay opinion testimony that courts routinely allow—and that

the defendants here agreed was proper. And any errors were harmless:

uncontested or tangential drops in a bucket of damning evidence.

Third, the testimony in the defendants’ remaining argument consists

only of contemporaneous statements to or by extortion victims. Those

non-hearsay statements demonstrated the victims’ fear of the

defendants—a “highly relevant” fact in an extortion case. United States

v. Collins, 78 F.3d 1021, 1036 (6th Cir. 1996); United States v. Williams,

952 F.2d 1504, 1518 (6th Cir. 1991). The district court therefore did not

abuse its discretion in admitting that testimony.


32

Argument

I. Kilpatrick cannot establish an actual conflict, much less the Strickland prejudice that Mickens now requires.

A. Background

In 2008, Kilpatrick retained James Thomas and Michael Naughton

to represent him in the many civil and criminal cases that threatened

his grip on the mayor’s office. (R.203: Thomas Conflict Memo., 1580–

83). Two years later, when Kilpatrick was first indicted in federal court,

he claimed indigency and asked the district court to appoint Thomas

and Naughton as his defense attorneys. (R.4: Thomas Appearance, 37;

R.10: CJA Motion, 44–47). The district court agreed. (R.12: CJA Order,

51). And for over two years, Kilpatrick had no complaints.

Then, the day before 400 potential jurors arrived at the courthouse to

fill out questionnaires, Kilpatrick suddenly demanded that the district

court replace Thomas and Naughton with new lawyers. (R.206: Tr.,

1670–96). Kilpatrick’s sole reason was that Thomas had once

represented Gasper Fiore, a towing contractor who was one of the

alleged extortion victims. (Id.; R.74: Fourth Superseding Indictment,

445–46, 459). To resolve Kilpatrick’s complaint and avoid delaying trial,


33

the government agreed to dismiss any Fiore-related allegations from

the indictment. (R.204: Gov’t Conflict Br., 1650–53).

But meanwhile, the Detroit Free Press reported that Thomas and

Naughton had established an “of counsel” affiliation with O’Reilly

Rancilio, P.C. (R.204: Gov’t Conflict Br., 1654). O’Reilly Rancilio

represented a plaintiff who was suing Kilpatrick (and others) in a civil

case. (E.D. Mich. No. 11-13101, R.1: Complaint, 1–19). The allegations

in the civil complaint tracked some of the allegations from Kilpatrick’s

criminal indictment related to the sinkhole repairs. (Id.). After reading

the Free Press article, the district court ordered the parties to brief any

conflict arising from the “of counsel” affiliation. (R.204: Gov’t Conflict

Br., 1654).

Thomas and Naughton explained that they had become “of counsel”

to O’Reilly Rancilio four months earlier. (R.203: Thomas Conflict

Memo., 1581). Cognizant of the pending civil case, they had erected an

ethical wall between their work on the criminal case and O’Reilly

Rancilio’s work on the civil case. (Id., 1581, 1584). They had at all times

kept their client files—including Kilpatrick’s—at their own office in

Detroit, apart from O’Reilly Rancilio’s office in the suburbs. (Id., 1581).


34

They had maintained their electronic files on a separate, password-

protected server that no one from O’Reilly Rancilio could access. (Id.).

They had refrained from any substantive discussions with anyone from

O’Reilly Rancilio. (Id., 1584). And they had carefully avoided any

financial connection with the civil case. (Id.).

At a hearing, Thomas again confirmed that he and O’Reilly Rancilio

had “instituted [a] Chinese wall” to forestall any conflict. (R.362: Tr.,

9394). He again confirmed that he and O’Reilly Rancilio did “not share

information,” that their offices and computers were separate, and that

they had not exchanged any confidential information. (Id., 9394–95). He

again confirmed that he had “no financial interest in that case.” (Id.,

9394). O’Reilly Rancilio soon verified that same information in the civil

case, confirming that Thomas and Naughton “d[id] not have a financial

interest” in the firm—and, indeed, only “share[d] revenue” with O’Reilly

Rancilio “on individual files on which they work[ed] together.” (R.463:

Rule 33 Order, 15669).

Given those precautions, the district court denied Kilpatrick’s motion

to replace Thomas and Naughton. (R.199: Conflicts Order, 1560–75).

The district court found the attorneys’ safeguards sufficient to avoid any


35

imputed disqualification from the “of counsel” affiliation. (Id., 1563–66).

And “[t]o further protect against any potential conflict,” the district

court appointed independent counsel, Harold Gurewitz, “to cross-

examine all government witnesses connected to” the civil case. (Id.,

1567; R.207: CJA Appointment, 1698).

B. Kilpatrick cannot satisfy either requirement for demonstrating an actual conflict under the Sixth Amendment.

A defense attorney’s conflict of interest can, in some circumstances,

violate a defendant’s Sixth Amendment right to counsel. Mickens v.

Taylor, 535 U.S. 162, 166 (2002). But there are no “per se conflicts”—

only “actual conflicts.” Moore v. Mitchell, 708 F.3d 760, 777 (6th Cir.

2013). To demonstrate an actual conflict, a defendant must establish

both that (1) his counsel “actively represented conflicting interests,” and

(2) the alleged conflict “adversely affected his lawyer’s performance.”

Burger v. Kemp, 483 U.S. 776, 783 (1987) (citations omitted); see also

Mickens, 535 U.S. at 171–72 & n.5. Kilpatrick can do neither.

1. Kilpatrick cannot show that his defense team suffered from divided loyalties.

For three reasons, Kilpatrick cannot show that his attorneys

“actively represented conflicting interests.” Burger, 483 U.S. at 783.


36

First, the district court correctly found that Thomas’s and Naugton’s

“of counsel” affiliation with O’Reilly Rancilio was “extremely

attenuated” and did not strain their loyalty to Kilpatrick. (R.362: Tr.,

9423–24). All of the evidence—both in writing and at the conflicts

hearing—demonstrated that Thomas and Naughton preserved their

duty of confidentiality. They kept Kilpatrick’s files at their own,

separate office; they used separate, password-protected computers; and

they avoided any substantive discussions with anyone from O’Reilly

Rancilio. (R.203: Thomas Conflict Memo., 1581, 1584; R.362: Tr., 9394–

95). They also preserved their duty of loyalty, taking no financial

interest in the civil case—or in O’Reilly Rancilio generally. (R.203:

Thomas Conflict Memo., 1584; R.362: Tr., 9394–95; R.463: Rule 33

Order, 15669).

Indeed, the facts here mirror those that the Second Circuit found

sufficient to avoid disqualification in Hempstead Video, Inc. v. Valley

Stream, 409 F.3d 127 (2d Cir. 2005). There, as here, an attorney became

“of counsel” to a law firm while that firm was suing one of his

longstanding clients in a separate lawsuit. Id. at 130. Like Thomas and

Naughton, the “of counsel” attorney “maintained separate files,” his


37

new firm “did not have access to the files,” and neither side disclosed

any confidential information to the other. Id. at 136. And on those facts,

the Second Circuit found the “of counsel” affiliation “too attenuated” to

impute any conflict. Id. That reasoning applies just as strongly here.

Second, the district court here adopted an additional safeguard not

present in Hempstead Video—appointing independent counsel to join

Kilpatrick’s defense team. (R.199: Conflicts Order, 1567). This Court

has previously approved of using independent counsel in a similar

fashion. United States v. Robinson, 290 F. App’x 769, 774 (6th Cir.

2008). The Seventh Circuit has also endorsed it—lauding it as an “easy

solution” to “eliminate[] all risks.” Rodriguez v. Chandler, 382 F.3d 670,

673 (7th Cir. 2004). Other circuits have approved similar approaches.

E.g., United States v. Wright, 745 F.3d 1231, 1233–34 (D.C. Cir. 2014);

United States v. Burns, 526 F.3d 852, 857 (5th Cir. 2008); United States

v. Saccoccia, 58 F.3d 754, 772 & n.13 (1st Cir. 1995).

Independent counsel’s involvement at trial here was no mere

formality. He coordinated with Thomas and Naughton on defense

strategy. (See, e.g., R.353: Tr., 8217–18; R.370: Tr., 10042–43; R.372:

Tr., 10250; R.425: Tr., 15063–65; R.426: Tr., 15081). He sat at counsel


38

table during large stretches of trial—even testimony unrelated to the

sinkhole. (E.g., R.301: Tr., 4641; R.353: Tr., 8212; R.356: Tr., 8603;

R.358: Tr., 8811; R.359: Tr., 8960; R.360: Tr., 9110; R.361: Tr., 9249;

R.368: Tr., 9652; R.369: Tr., 9785). He thoroughly cross-examined

Anthony Soave, the Inland witness who described Kilpatrick’s extortion

in the mayor’s office. (R.382: Tr., 11664–719; R.372: Tr., 10226–49,

10271–73). And throughout the six-month trial, independent counsel

never once suggested that he could not protect Kilpatrick’s interests or

that the remedy fashioned by the district court was inadequate.

Third, subsequent developments in the civil case rendered any

potential conflict even more remote. Before any witnesses testified here

about the sinkhole, O’Reilly Rancilio’s client voluntarily dismissed all

claims against Kilpatrick in the civil case. (E.D. Mich. No. 11-13101,

R.241: Response, 4316–18; E.D. Mich. No. 11-13101, R.251: Order,

4476). That dismissal meant that O’Reilly Rancilio could no longer

benefit from a guilty verdict under principles of res judicata or

collateral estoppel. So the only remote risk was that Thomas or

Naughton might somehow deliberately acquiesce in unfavorable

evidence, helping O’Reilly Rancilio—but not Thomas or Naughton—to


39

someday benefit from that evidence to win its remaining claims against

unrelated parties in the civil case. Even assuming that were plausible

(itself quite an assumption), independent counsel was there to protect

against it.

None of Kilpatrick’s counterarguments change the analysis. His best

authorities are two advisory ethics opinions that adopt a one-size-fits-

all approach to “of counsel” affiliations. (Kilpatrick Br. 23–24). But as

the Second Circuit explained in distinguishing similar opinions, a court

“cannot paint with [the] broad strokes” of a “per se rule,” because it

“risks elevating the label assigned to a relationship over the substance

of that relationship.” Hempstead Video, 409 F.3d at 135; see also 1

Mallen et al., Legal Malpractice § 5:7 (2014 ed.) (“The mere designation

. . . of the lawyer as ‘of counsel’ should not suffice as the sole basis for

imputing conflicts of interest.”).

Further, Kilpatrick gets his causation backwards. He assumes that

Thomas and Naughton would only call themselves “of counsel” if their

connection to O’Reilly Rancilio was as intimate as the ethics opinions

assume. (Kilpatrick Br. 23–24). That is simply not true. Rather, as the

district court’s inquiry confirmed, the “of counsel” affiliation here


40

echoed the type of “occasional collaborative efforts” that the ethics

opinions disclaim. ABA Formal Op. 90-357. That attenuated

relationship thus further supports the fact-specific approach to “of

counsel” affiliations that the Second Circuit adopted in Hempstead

Video, 409 F.3d at 135–36.

2. Kilpatrick cannot demonstrate that any conflict adversely affected his attorneys’ performance.

Kilpatrick also cannot show that the alleged conflict “actually

affected the adequacy of his representation.” Mickens, 535 U.S. at 171

(quoting Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980)). To satisfy his

burden, Kilpatrick must “point to specific instances in the record . . .

and demonstrate that the attorney[s] made a choice between possible

alternative courses of action, such as eliciting (or failing to elicit)

evidence helpful to one client but harmful to the other.” Moore, 708 F.3d

at 777.

Kilpatrick does not do so. His 17-page conflict argument includes

only a footnote on this point, vaguely hinting that Thomas should have

asked Miller more questions “about conversations with Kilpatrick

regarding contracts in this case.” (Kilpatrick Br. 21 n.7). Kilpatrick does

not specify:


41

• What additional questions Thomas should have asked;

• What Miller might have said—beyond just repeating incriminating testimony;

• Why any reasonable attorney would have extended Miller’s three days of cross-examination; or

• How O’Reilly Rancilio’s client could have possibly benefitted from the absence of additional questioning.

Because Kilpatrick does not identify any specific actions or choices

affected by the “of counsel” affiliation, his claim must fail. Moore, 708

F.3d at 777.

Moreover, independent counsel was appointed exactly for this

reason: “to cross-examine all government witnesses connected to” the

civil case. (R.199: Conflicts Order, 1567 (emphasis added); accord R.200:

CJA Appointment, 1576). If independent counsel believed that Miller’s

testimony was “connected to” the civil case, he would have spoken up

and cross-examined him. “The presence of co-counsel unaffected by the

alleged conflict of interest makes it even less likely that [Kilpatrick’s]

representation was adversely affected by the alleged conflict.” United

States v. Novaton, 271 F.3d 968, 1012 n.11 (11th Cir. 2001); see also

Saccoccia, 58 F.3d at 772 & n.13.


42

Nor can Kilpatrick circumvent the actual conflict standard by

invoking the “automatic reversal” rule from Holloway v. Arkansas, 435

U.S. 475 (1978). (See Kilpatrick Br. 29–30). The Holloway rule applies

“only where defense counsel is forced to represent codefendants over his

timely objection.” Mickens, 535 U.S. at 168 (emphasis added); see also

Harrison v. Motley, 478 F.3d 750, 756 (6th Cir. 2007). Kilpatrick’s claim

does not, in any way, involve joint representation of codefendants. The

Holloway rule therefore does not apply.

Kilpatrick also cannot avoid the actual conflict standard by

chastising Thomas and Naughton for waiting to notify the district court

about their “of counsel” affiliation. (See Kilpatrick Br. 31–34).

Regardless of when the “of counsel” affiliation began, Kilpatrick must

still establish an actual conflict. Further, Kilpatrick is a trained lawyer,

and he knew about the “of counsel” affiliation almost from its inception.

(R.463: Rule 33 Order, 15663 n.2, 15665–66; R.362: Tr., 9398–99). If he

had really been concerned—and was not just playing a “cat and mouse

game” with his right to counsel, United States v. Krzyske, 836 F.2d

1013, 1017 (6th Cir. 1988)—he would have said something earlier.

Indeed, Kilpatrick’s gamesmanship here might have justified a waiver-


43

by-misconduct finding. See, e.g., United States v. Blau, 159 F.3d 68, 73–

75 (2d Cir. 1998); see also Holloway, 435 U.S. at 486–87 (permitting

district courts to “deal with” conflicts motions made “for dilatory

purposes”). But rather than finding waiver, the district court went out

of its way to protect his rights—vetting the alleged conflict and

appointing independent counsel as a safeguard.

C. Kilpatrick also cannot establish that any conflict prejudiced him—as he must under Mickens.

Kilpatrick’s claim fails for yet another reason: he cannot show that,

absent the alleged conflict, “the result of [his trial] would have been

different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Before

the Supreme Court’s decision in Mickens, most courts had applied a

presumption of prejudice “unblinkingly” to “all kinds of alleged attorney

ethical conflicts.” Mickens, 535 U.S. at 174 (citation omitted). But in

Mickens, the Supreme Court explained that the rationale for presuming

prejudice only extends to joint representation cases. Id. at 174–76. Most

importantly for this case, the Supreme Court expressed skepticism that

a presumption of prejudice would apply for conflicts that only “somehow

implicate[] counsel’s personal or financial interests.” Id. at 174.


44

The Supreme Court’s reasoning applies strongly here. Unlike in a

joint representation case, the ethical wall here blocked any exchange of

confidential information. Indeed, with respect to confidentiality,

Kilpatrick’s conflict claim is far weaker than claims involving the

successive representation of a defendant and a government witness—

where this Court has already declined to presume prejudice post-

Mickens. See, e.g., Gillard v. Mitchell, 445 F.3d 883, 891 (6th Cir. 2006);

cf. Moss v. United States, 323 F.3d 445, 462 (6th Cir. 2003). And unlike

in a joint representation case, Kilpatrick’s attorneys—including

independent counsel—did not represent two defendants with potentially

inconsistent stories; they only represented Kilpatrick. Kilpatrick must

therefore demonstrate Strickland prejudice.

Under that standard, Kilpatrick cannot prevail. He does not suggest

how the alleged conflict affected the jury’s verdict on count three—the

only extortion count involving the sinkhole. Nor does he show how the

alleged conflict could have affected the verdict on the other 23 counts of

conviction. See United States v. Martinez, 630 F.2d 361, 364 (5th Cir.

1980) (applying a count-specific prejudice analysis). Kilpatrick was

convicted because “the proofs of his guilt were overwhelming,” Powell v.


45

Bordenkircher, 789 F.2d 425, 426 (6th Cir. 1986), not because of an “of

counsel” affiliation.

II. The case agents’ testimony was properly admitted, and any mistakes were harmless.

Because this was a six-month trial, the district court permitted the

government to present its case in “chapters”—the Civic Fund, each

DWSD contract, and each episode of RICO testimony. See Fed. R. Evid.

611(a). The government’s case agents, Robert Beeckman and Carol

Paszkiewicz, therefore testified several different times. Mostly, they

introduced and published documentary evidence pertaining to each

chapter: bank records, Civic Fund documents, DWSD documents,

calendar pages, emails, and text messages.

The defendants have now collected a grab bag of that testimony—

much of it unchallenged during trial—and labeled all of it lay opinion

testimony, citing this Court’s intervening decision in United States v.

Freeman, 730 F.3d 590 (6th Cir. 2013), to argue that the trial here was

unfair. Where the defendants objected at trial, this Court reviews for an

abuse of discretion. United States v. Goosby, 523 F.3d 632, 638 (6th Cir.

2008). Where the defendants failed to object, the Court reviews only for

plain error. United States v. Olano, 507 U.S. 725, 732–37 (1993).


46

Freeman was a murder-for-hire case, where the “primary evidence”

implicating the defendant was 77 recorded phone calls. Freeman, 730

F.3d at 594. At trial, the government’s case agent offered his opinion

about cryptic conversations in those calls, expanding on otherwise plain

language “to broadly illustrate the prosecution’s theory of the case for

the jury.” Id. at 594–95. He even interpreted one phrase—“the

situation”—to narrate the entire murder plot: “The situation discussed

was regarding Leonard Day and his having stolen jewelry from Roy

West, Roy West having put a hit on Leonard Day, and Leonard Day

ultimately being killed.” Id. at 595.

This Court held that the agent’s testimony went too far under

Federal Rule of Evidence 701. Id. at 595–99. The agent’s vague

references “to the investigation as a whole” did not establish a sufficient

foundation for his interpretations—and perhaps even incorporated

hearsay. Id. at 596–97. The testimony also did not help the jury; it

simply told the jury what result to reach. Id. at 597–98.

Newly armed with Freeman, the defendants here have adopted a

shotgun approach—scattering random bits of testimony in their briefs,

with little or no explanation of why each piece was inadmissible, much


47

less prejudicial. Most of that testimony has nothing to do with Freeman;

it was admissible for reasons other than Rule 701. Most of the

remaining testimony involved uncontroverted names or nicknames—

which the defendants themselves conceded was proper. And any errors

were harmless in the context of this six-month trial.

A. The challenged testimony was proper—mostly for reasons unrelated to Freeman.

The defendants’ briefs include approximately eight categories of

testimony that they attempt to shoehorn into Freeman. Most of that

testimony was admissible under settled rules of evidence that remain

unaffected by Freeman.

First, the district court did not abuse its discretion in permitting

Paszkiewicz to describe how and why her investigation began.

Investigating agents are permitted “to explain how and why [they] came

to be involved with this particular defendant.” United States v. Aguwa,

123 F.3d 418, 421 (6th Cir. 1997). At least six of the bullet points in

Ferguson’s brief fall into this category: testimony detailing

Paszkiewicz’s collection and review of the text messages (Ferguson Br.

34 (citing R.337: Tr., 6452–54)), as well as testimony that she began


48

investigating the defendants in response to allegations of extortion and

bid-rigging (id. 35–36 (citing R.350: Tr., 7841–44; R.351: Tr., 8052–53)).

Second, the district court did not err—much less plainly err—in

permitting the agents to publish documentary evidence for the jury.

Case agents may “read aloud from documents that . . . [are] properly

admitted,” even where there are “minor discrepancies between the

reading and the written text.” United States v. Tragas, 727 F.3d 610,

614 (6th Cir. 2013). Paszkiewicz was thus permitted to read from the

city’s organizational chart and Mercado’s employment agreement.

(Kilpatrick Br. 49 (citing R.374: Tr., 10457–70)). Also proper was

Paszkiewicz’s description of CM-2012—even if Paszkiewicz originally

described it mistakenly. (Ferguson Br. 36 (citing R.350: Tr., 7852); see

also Ex. DLZ-1A, App’x 35–42; R.351: Tr., 8021 (conceding the mistake

on cross-examination)). Proper too was Beeckman’s mundane

description of the Civic Fund’s articles of incorporation. (Compare

Kilpatrick Br. 48 (citing R.336: Tr., 6260–62), with Ex. KCF-2, App’x

129–68). And one of Kilpatrick’s other complaints—that Paszkiewicz

read “noisy” as “nosy” while publishing a text message (Kilpatrick Br.

54 (citing R.350: Tr., 7874))—was the very type of “minor discrepancy”


49

that this Court allowed in Tragas, 727 F.3d at 614, and that the jurors

could evaluate for themselves by simply reading the exhibit.

Third, some of the testimony recited in the defendants’ briefs

consisted of simple “framing questions”: short references to previously

admitted evidence as a transition to a new exhibit. For instance, before

admitting Exhibit LS1-12, the prosecutor briefly referred Paszkiewicz to

Hardiman’s previous testimony as a way to put that text message in

context. (Ferguson Br. 36 (citing R.367: Tr., 9631–33)). Paszkiewicz’s

answers did not add anything to the text message; they just referred to

previous testimony as a benchmark. (R.367: Tr., 9631–33). Other

questions were similar—simple references to previously admitted

evidence. (E.g., Ferguson Br. 38–41 (citing R.390: Tr., 12822–23; R.400:

Tr., 13947–48, 13976–77, 13989–90); Kilpatrick Br. 49–50, 58 (citing

R.350: Tr., 7853–54, 7883; R.384: Tr., 12012)).

Allowing those framing questions was not an abuse of discretion.

Federal Rule of Evidence 611(a) permits district courts to “exercise

reasonable control” in making the trial “effective for determining the

truth.” And in a large, complicated case, the jury will often struggle to

remember where a given exhibit fits in context. A short reference to


50

previously admitted evidence solves that problem—orienting the jury

and making the trial “effective for determining the truth.” Fed. R. Evid.

611(a).

Indeed, this Court has relied on similar reasoning to permit case

agents to summarize previously admitted evidence in far greater detail

than the framing questions here. United States v. Smith, 601 F.3d 530,

539–40 (6th Cir. 2010); see also United States v. Hall, 434 F.3d 42, 57

(1st Cir. 2006). Many courts, including this one, have even permitted

agents to describe otherwise inadmissible evidence as context for a trial

exhibit. United States v. Gadson, 763 F.3d 1189, 1211–12 (9th Cir.

2014); United States v. Holbrook, 1994 WL 419585, at *4–*5 (6th Cir.

1994). And for much the same reason, courts routinely permit leading

questions “to focus the witness or to otherwise clarify testimony.”

United States v. Pugh, 404 F. App’x 21, 28 (6th Cir. 2010). The framing

questions served the same purpose.

Fourth, the agents also permissibly summarized voluminous

“writings” and “recordings” under Federal Rule of Evidence 1006. Rule

1006 permits testimonial summaries, not just charts. See Fed. R. Evid.

1006; see also 6 Weinstein’s Federal Evidence § 1006.05[2] (“Summary


51

evidence need not be an exhibit, but may take the form of a witness’s

oral testimony.”). Here, the only piece of Rule 1006 testimony preserved

by objection was Beeckman’s summary that DWSD records showed a

standard oversight fee of 5%. (Ferguson Br. 38 (citing R.389: Tr.,

12739–41); Kilpatrick Br. 58 (same)). As the prosecutor explained at

sidebar, Beeckman was summarizing “boilerplate” from DWSD’s

standard contracts. (R.389: Tr., 12740). The defendants do not suggest

why the government needed to admit hundreds of boilerplate contracts

just to prove that DWSD’s standard oversight fee was 5%. Nor could

they: that testimony is precisely what Rule 1006 permits, and nothing

in Rule 701 prohibits it. United States v. Faulkenberry, 614 F.3d 573,

588–89 (6th Cir. 2010); United States v. Madison, 226 F. App’x 535,

543–44 (6th Cir. 2007).

The defendants did not object to any of the other summaries that fell

within Rule 1006. The agents summarized voluminous documents—for

instance, that records showed Ferguson negotiating with Inland.

(Kilpatrick Br. 56 (citing R.374: Tr., 10418); see also id. 50, 55–56 (citing

R.350: Tr., 7894–95; R.374: Tr., 10419; R.375: Tr., 10677; R.400: Tr.,

13961)). They also summarized a couple of long, uncontested wiretap


52

recordings—such as calls detailing trips to Florida by Kilpatrick’s

father, Bernard. (Id. 50–51 (citing R.340: Tr., 6978–79; R.400: Tr.,

13954); see also id. 48–49 (citing R.394: Tr., 13292)). And they

summarized voluminous text messages—testifying, for example, that

texts showed Kilpatrick, Ferguson, and Miller meeting regularly after-

hours. (Id. 56 (citing R.375: Tr., 10679)).

Those summaries were not plain error—or error at all. Rule 1006

expressly permits witnesses to summarize “recordings,” and nothing in

Freeman affects that plain language. Fed. R. Evid. 1006; see United

States v. Lanzar, 69 F. App’x 224, 229 (6th Cir. 2003) (permitting

summarization of a videotape). And once again, the defendants do not

explain why the jury needed to see all documents in which Ferguson

and Inland negotiated Ferguson’s subcontract. Or should have sat

through all recorded phone calls detailing Bernard Kilpatrick’s trips to

Florida. Or needed to see all text messages in which the conspirators

arranged meetings.

Fifth, the district court also did not abuse its discretion in admitting

testimony “that an event did not occur because relevant records contain

no mention of it.” McCormick on Evidence § 234 (2013). This Court has


53

long permitted this type of “dog that didn’t bark” testimony, because it

is the only feasible way to introduce that evidence. United States v.

Scales, 594 F.2d 558, 562–63 (6th Cir. 1979); see also United States v.

Diaz-Lopez, 625 F.3d 1198, 1202 (9th Cir. 2010). The agents here thus

properly testified that no city records authorized Ferguson to have a

role in the contracting process, and that Kilpatrick did not exchange

texts with other city contractors on the same subjects as he did with

Ferguson. (Kilpatrick Br. 53, 56 (citing R. 350: Tr., 7862; R.375: Tr.,

10685–90); Ferguson Br. 37 (same); see also Kilpatrick Br. 51 (citing

R.340: Tr., 6979); Ferguson Br. 39, 41 (citing R.400: Tr., 13952–53;

R.401: Tr., 14040–41)). Further, the defendants had access to all of

those city records and text messages. If the agents had testified

incorrectly, the defendants could have easily cross-examined them with

a document that contradicted the testimony.

Sixth, the defendants waived some of the objections that they now

raise in their briefs. For instance, the defendants agreed that

Paszkiewicz could briefly summarize Kathleen McCann’s notes, in lieu

of recalling McCann as a witness. (Compare Ferguson Br. 36, with

R.374: Tr., 10422–24). Parties are bound by their agreements, even


54

informal ones. United States v. Spikes, 158 F.3d 913, 928 (6th Cir.

1998). Similarly, the district court actually sustained the defendants’

objection to Beeckman’s testimony that text messages showed a city

employee going “out of his way to assist Mr. Ferguson.” (Compare

Kilpatrick Br. 57, with R.378: Tr., 11038). The district court then

ordered the government to publish the text messages “without asking

[the agent] to characterize” them (R.378: Tr., 11038)—“thus answer[ing]

[Kilpatrick’s] objection,” United States v. Tasis, 696 F.3d 623, 625 (6th

Cir. 2012).

Likewise, much of the challenged testimony in Ferguson’s brief

consists only of short identifications: first names, last names,

nicknames, or pronouns—all of which were obvious, uncontested, or

given only for context. (E.g., Ferguson Br. 34 (citing R.347: Tr., 7374

(Kilpatrick and his dad called each other “this guy”)); see also id. 35–40

(citing similar testimony)). The defendants here agreed that

identifications were an appropriate subject for lay opinion testimony.

(R.153: Motion Reply, 1314–15; R.347: Tr., 7380–83). They also agreed

that the agents could base those identifications on a review of the text

messages. (Id.). The defendants have therefore waived any argument to


55

the contrary. United States v. Street, 614 F.3d 228, 234–35 (6th Cir.

2010). And in taking the shotgun approach on appeal, they do not

explain how or why their bits of quoted testimony went beyond their

agreement. They have therefore waived that argument too. United

States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006) (“[I]t is a settled

appellate rule that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived.”).

Even if the Court were to address this issue on the merits, the

limited identifications satisfied Rule 701. The Ninth Circuit—which

this Court expressly followed in Freeman—recently permitted the same

type of testimony. Gadson, 763 F.3d at 1210–11. The First Circuit has

too, in an opinion joined by Justice Souter and cited with tacit approval

in Freeman. United States v. Albertelli, 687 F.3d 439, 449 (1st Cir.

2012); see also United States v. El-Mezain, 664 F.3d 467, 513–14 (5th

Cir. 2011); United States v. Garcia, 994 F.2d 1499, 1506–07 (10th Cir.

1993). Even in Freeman, this Court acknowledged in dicta that “code

words” could be a proper subject for lay opinion testimony. Freeman,


56

730 F.3d at 598; see also United States v. Mack, 1998 WL 773996, at *1

(6th Cir. 1998).

Seventh, the defendants’ briefs include a few snippets of testimony

where the agents described an event, document, or concept, but the

foundation for the testimony does not appear in the record. Beeckman,

for instance, briefly described the law regarding § 501(c)(4)

organizations, explaining that § 501(c)(4) organizations are not

permitted to fund political campaigns. (Kilpatrick Br. 48 (citing R.336:

Tr., 6303)). Kilpatrick did not object to that testimony; it also did not

implicate Freeman, because it did not interpret any wiretaps or text

messages. And as described below, Kilpatrick’s own expert testified to

the exact same thing. (Compare R.336: Tr., 6303, with R.401: Tr.,

14144–46). The other testimony in this group was similarly minor,

uncontroverted, or at worst, harmless error. (Kilpatrick Br. 49–51, 54–

55 (citing R.336: Tr., 6303; R.350: Tr., 7890; R.351: Tr., 8038, 8041–42);

Ferguson Br. 36 (same)).

Eighth, the defendants’ briefs include a handful of interpretations

that expand beyond mere identifications. In Exhibit RUTH-43, for

example, Kilpatrick and Miller texted about an upcoming meeting with


57

the “Venetian,” as well as an “[e]xtra tax on slots.” (Ex. RUTH-43, App’x

430). Beeckman interpreted the text message as referring to a “casino

development.” (Ferguson Br. 34–35 (citing R.347: Tr., 7397–98)). That

was hardly controversial. Derrick Miller even testified later to that

exact same thing. (R.385: Tr., 12106–08). Nor was it important to the

case. See Albertelli, 687 F.3d at 449 (permitting lay opinion testimony

that was neither “a debatable proposition” nor “prejudicial”).

The other bits of testimony here were similarly limited—

uncontroverted details or context for exhibits that did not relate to any

pivotal issue in the case. (See Ferguson Br. 37, 39–41 (citing R.378: Tr.,

11046–47 (text messages referred to “purchasing tailor-made suits for

Lee Stephenson”); R.400: Tr., 13956–57 (text message showed “that

Amru Meah was asked . . . to interfere with someone else’s permits”),

13959–60 (text message referred to a news article), 13982–84 (text

message referred to a city recusal requirement); R.390: Tr., 12756 (text

messages showed a “fee dispute” with Walbridge after the extortion

occurred)); Kilpatrick Br. 48, 59 (same)). Unlike the interpretations in

Freeman, none of this testimony “spoon-fed” the government’s theory of

the case to the jury. 730 F.3d at 597. It simply avoided prolonging the


58

trial for undisputed asides. And even if this Court were to find or

assume any errors—here or anywhere else—those errors would be

harmless.

B. Any errors would be harmless as uncontroverted or cumulative testimony in the face of overwhelming evidence.

“A defendant is entitled to a fair trial but not a perfect one, for there

are no perfect trials.” Brown v. United States, 411 U.S. 223, 231–32

(1973). Thus, like all non-constitutional errors, an evidentiary error is

“harmless unless it is more probable than not that the error materially

affected the verdict.” United States v. Neuroth, 809 F.2d 339, 342 (6th

Cir. 1987) (en banc); see also United States v. Childs, 539 F.3d 552, 559

(6th Cir. 2008). Where the defendant has failed to object, he has the

burden of showing prejudice. Olano, 507 U.S. at 734–35.

Here, even if this Court were to assume that all of the challenged

testimony was admitted in error—and it was not—the evidence of guilt

towered over any imperfections. That evidence included $531,000 in

unexplained cash; bank records showing Kilpatrick’s fraud at the Civic

Fund; witness after witness testifying about that same fraud, the

extortion at DWSD, and the rest of the RICO enterprise; as well as


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emails, documents, and unambiguous text messages establishing the

same crimes.

Nor did the defendants have a plausible explanation for it. A

“relatively weak” defense is one factor pointing toward harmless error.

United States v. Garcia, 413 F.3d 201, 218 (2d Cir. 2005) (citation

omitted). Here, Kilpatrick tried to explain away $531,000 in cash with

$50 birthday checks. (R.396: Tr., 13595–603; see also R.397: Tr., 13710–

12). And Ferguson’s most notable attempt at a defense was to fabricate

a trial exhibit (R.391: Tr., 12852–906; Exs. IN1-72, -72A, -72B, App’x

116–23)—a strong sign that he thought “his case [was] a weak or

unfounded one,” United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th

Cir. 1986).

The challenged testimony here also differed markedly from Freeman,

where the wiretap recordings—and the agent’s interpretations—were

the primary evidence connecting the defendant to the murder

conspiracy. Freeman, 730 F.3d at 594–95. Indeed, in Freeman, that

evidence was so central to the case that the government did not even

advance a harmless error argument. Id. at 599 n.1. Here, in contrast,

the government neither needed nor relied on any of the challenged


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testimony to prove a contested element of its case—on any count of

conviction.

1. Mail and Wire Fraud at the Civic Fund (Counts 18–26, 28, and 30).

Kilpatrick cannot show prejudice from the four random pieces of

Civic Fund testimony that he quotes in his brief—none of which he

preserved by objection. First, the Civic Fund’s status as a “public

welfare organization” and “tax-exempt nonprofit organization” was

uncontested. Its articles of incorporation said as much, as did

Kilpatrick’s own expert witness. (Compare Kilpatrick Br. 48 (citing

R.336: Tr., 6260), with Ex. KCF-2, App’x 129–68; R.401: Tr., 14111–12).

Second, Kilpatrick’s expert likewise agreed with Beeckman’s

observation that a § 501(c)(4) organization could not fund Kilpatrick’s

mayoral campaign. (Compare Kilpatrick Br. 48 (citing R.336: Tr., 6303),

with R.401: Tr., 14144–46). And the fraud charges did not focus on tax

law. They focused on Kilpatrick’s misrepresentation to donors: “No

funds of the Civic Fund are donated to any political campaign.” (Exs.

KCF-90, -92 to -95, -97, -99, App’x 329–53). Third, April Edgar testified

in detail about Kilpatrick’s continuing control over the Civic Fund.

(R.339: Tr., 6696–98, 6722–23, 6762–63). And the Civic Fund’s


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expenditures were unambiguous on that point. Beeckman’s passing

comment added nothing. (Kilpatrick Br. 51 (citing R.336: Tr., 6303)).

Fourth, regardless of Bernard Kilpatrick’s trip to Florida (Kilpatrick Br.

51 (citing R.340: Tr., 6978–79)), the evidence overwhelmingly showed

that Kilpatrick used the Civic Fund as a scheme to fund his personal

expenses.

2. Extortion of Inland (Counts 2 and 3)

The three challenged bits of Inland testimony are just as harmless—

and just as unpreserved for appeal. The first is Paszkiewicz’s statement

that Ferguson and Inland were negotiating Ferguson’s contract in

November 2002. (Kilpatrick Br. 56 (citing R.374: Tr., 10418)). That was

uncontested. Even the defense agreed that the negotiations “continued

into the fall of 2002, actually to even the early spring of 2003.” (R.373:

Tr., 10392). And in the second and third bits of challenged testimony,

Paszkiewicz just briefly referenced Ferguson’s performance issues.

(Kilpatrick Br. 56 (citing R.374: Tr., 10419); Ferguson Br. 36 (citing

R.374: Tr., 10422)). At worst, that testimony was cumulative. McCann

had already described those same performance issues (R.372: Tr.,


62

10315–18), and DWSD even sent Inland a stop-work order because

Ferguson’s performance was so bad (Ex. IN1-31, App’x 87–88).

Moreover, none of the Inland-related testimony in the defendants’

briefs touched on the central issue at trial: whether Kilpatrick and

Ferguson extorted Inland in the first place. On that point, the testimony

by Inland’s executives said all the jury needed to know to convict.

3. Extortion of Lakeshore (Counts 7, 8, and 9)

The challenged Lakeshore testimony was equally insignificant. The

defendants cannot seriously contend that Beeckman misidentified

“Tom” as Tom Hardiman in Exhibit LS2-2. (Ferguson Br. 40 (citing

R.400: Tr., 13975–78); see Ex. LS2-2, App’x 380). Both Hardiman and

Miller testified about the events described in that text message. (R.352:

Tr., 8124–32; R.355: Tr., 8577–78; R.386: Tr., 12222–37). Hardiman also

sent Ferguson another text message—on that very same day—about

that very same contract. (R.352: Tr., 8129–30; Ex. LS2-1, App’x 379).

And the remaining bits of challenged Lakeshore testimony all involved

framing questions—short references to previous evidence to benchmark

new exhibits. (Ferguson at 36, 40 (citing R.400: Tr., 13975–78; R.367:


63

Tr., 9631–33)). Those questions did not expand on the text messages;

they thus could not have resulted in any prejudice.

The CM-2014 count must be affirmed for an even simpler reason: the

defendants do not challenge any testimony related to it. Harmless error

is a count-specific inquiry, even under the most stringent view of Rule

701. Gadson, 763 F.3d at 1231–32 (Berzon, J., dissenting); see also

United States v. Johnson, 831 F.2d 124, 129 (6th Cir. 1987). CM-2014

occurred after Kilpatrick and Ferguson had replaced their pagers with

Blackberries to prevent anyone from accessing their text messages.

(R.381: Tr., 11430–37). The evidence for CM-2014 thus did not include

any text messages, much less any interpretations. And tellingly, in

Kilpatrick’s argument section where he lists CM-2014, he does not

include any testimony related to that contract. (See Kilpatrick Br. 51–

55).

4. Extortion of Walbridge (Counts 4 and 5)

The few snippets of Walbridge testimony were also harmless. On the

Baby Creek contract, all but one piece of challenged testimony

concerned events—such as the 5% fee dispute—that occurred after

Ferguson had already extorted his way onto the contract. (Ferguson Br.


64

38 (citing R.389: Tr., 12739–44; R.390: Tr., 12755–57); Kilpatrick Br.

58–59 (same)). That evidence was only for context, and the government

did not mention it when discussing Baby Creek during closing

argument. (R.406: Tr., 14484–86). And the only other challenged

testimony is Beeckman’s passing reference to equalization credits

(Kilpatrick Br. 58 (citing R.384: Tr., 12012))—which other witnesses

had already described at length (e.g., R.348: Tr., 7492–500; R.379: Tr.,

11180–85).

In addition, like the CM-2014 count, the Oakwood Pump Station

count occurred after the text messages stopped. So the defendants only

challenge one piece of unobjected-to testimony: Beeckman’s remark that

Walbridge was bidding on the contract when Walbridge’s CEO met with

Kilpatrick. (Ferguson Br. 38–39 (citing R.390: Tr., 12823)). Again, that

point was uncontroverted: Bernard Parker’s testimony and Kilpatrick’s

own calendar page had already established the same thing. (R.379: Tr.,

11213–15; Ex. WA2-1A, App’x 516).

5. RICO Conspiracy (Count 1)

The remaining testimony relates only to RICO conspiracy evidence—

such as CM-2012 or the Heilmann Recreation Center—that was not


65

charged separately. With or without that testimony, the RICO

conspiracy evidence was staggering. The separately charged extortion

counts alone showed Kilpatrick and Ferguson agreeing to commit far

more than two predicate acts. United States v. Fowler, 535 F.3d 408,

421 (6th Cir. 2008). And the mass of trial testimony and documentary

evidence established—in painstaking detail—how Kilpatrick and

Ferguson conspired to turn the mayor’s office into a criminal enterprise.

Moreover, most of the challenged RICO testimony was tangential to

the case—or had “nothing to do with any criminal activity.” United

States v. Johnson, 440 F.3d 832, 847 (6th Cir. 2006). The defendants, for

instance, complain that Beeckman identified “Matthew Flynn” as the

contractor in Exhibit RC-42. (Ferguson Br. 40; Kilpatrick Br. 59). But

the contractor’s identity was unimportant; what mattered in Exhibit

RC-42 was Ferguson’s request to “fuck[] with” someone else’s permits.

(Ex. RC-42, App’x 415). The defendants also conceded later that this

contractor was, in fact, Matthew Flynn. (R.401: Tr., 14019–20).

Likewise, the identity of “Gary” was not what made Exhibit RC-28

incriminating. (Ferguson Br. 40). Exhibit RC-28 was incriminating


66

because of Kilpatrick’s comment that Ferguson “wanted to strategically

lose a major bid.” (Ex. RC-28, App’x 413–14).

Other challenged RICO testimony was either cumulative or very

obvious. Several texts, for instance, showed Ferguson referring to

Kilpatrick as “boss.” (Compare Ferguson Br. 38 (citing R.390: Tr.,

12755), with Exs. BFF-25, IN1-33, App’x 32, 90–92). Several other

texts—and Miller’s testimony—confirmed Paszkiewicz’s summary that

the conspirators regularly held meetings. (Compare Kilpatrick Br. 56

(citing R.375: Tr., 10679), with Exs. RC-1, -3, -5 to -15, App’x 399–412;

R.385: Tr., 12147–50). The plain language of the wiretap recordings

alone showed that the people identified in them were “Jim Jenkins” and

“George Jackson.” (Compare Ferguson Br. 39 (citing R.395: Tr., 13463–

64), with Exs. BCD-11A, -12A, App’x 3–6). And four separate witnesses

identified Elizabeth Benson and her role in the Heilmann bidding.

(Compare Ferguson Br. 37 (citing R.378: Tr., 11041–43); Kilpatrick Br.

57–58 (same), with R.377: Tr., 10916–17, 10985–87, 11000–03; R.378:

Tr., 11073, 11086; R.386: Tr., 12181–82).

At bottom, the defendants do not point to a single piece of improper

testimony that prejudiced them on anything material to any of the


67

charges. Their opening briefs were their opportunity to do so, Sanborn

v. Parker, 629 F.3d 554, 579 (6th Cir. 2010)—and they failed. That basic

point resolves this issue on appeal.

III. The district court did not abuse its discretion in admitting non-hearsay evidence of the extortion victims’ fear.

The district court properly admitted non-hearsay testimony showing

that the extortion victims feared the defendants. Where, as here, an

extortion scheme exploits a fear of economic harm, the reasonableness

of that fear is “highly relevant”—“an essential element of the crime

charged.” United States v. Collins, 78 F.3d 1021, 1036 (6th Cir. 1996);

United States v. Williams, 952 F.2d 1504, 1518 (6th Cir. 1991). Thus, in

extortion cases, courts frequently admit two types of non-hearsay

statements. First are out-of-court statements to the victim, offered to

show the effect on the listener—“that the victim heard them and that

they would have tended to produce fear in [the victim’s] mind.”

Williams, 952 F.2d at 1518; see also United States v. Horton, 847 F.2d

313, 324 (6th Cir. 1988). Second are out-of-court statements by the

victim, offered as circumstantial evidence of the victim’s state of mind—

that the victim feared the defendant. Collins, 78 F.3d at 1036. These

statements differ from evidence admitted under Federal Rule of


68

Evidence 803(3), because they are not being used to prove the truth of

anything asserted in the statements. See 5 Weinstein’s Federal

Evidence § 801.11[5][c].

A. The extortion testimony was properly admitted under Williams and Collins.

The district court did not abuse its discretion in admitting the block-

quoted testimony in Ferguson’s brief. (Ferguson Br. 46–50). The four

statements to Inland’s decision-makers, Anthony Soave and Kathleen

McCann, were admissible “testimony of victims as to what others said

to them.” Williams, 952 F.2d at 1518. Soave, for instance, testified that

McCann kept him abreast of Ferguson’s threats. (R.370: Tr., 10046–50).

As the prosecutor explained at trial, that testimony showed “why

[Soave] decided not to cut off Ferguson.” (Id., 10046). Likewise, McCann

properly described three out-of-court statements in which she heard

that Kilpatrick wanted contractors to hire Ferguson. (R.372: Tr., 10291–

93, 10322–23). That testimony was admissible for its effect on

McCann—to show why she believed that Inland needed to hire and pay

Ferguson. See Williams, 952 F.2d 1517–18; see also United States v.

Hyde, 448 F.2d 815, 845–46 (5th Cir. 1971) (approving testimony about

statements to victims “that payoffs were necessary”).


69

Some of those same out-of-court statements to McCann were also

admissible as non-hearsay evidence “indicating fear of the defendant.” 4

Mueller & Kirkpatrick, Federal Evidence § 8:71 (4th ed.); Collins, 78

F.3d at 1036. For instance, Soave told McCann—after meeting with

Kilpatrick—that Ferguson needed to be Inland’s subcontractor. Those

statements not only influenced McCann’s state of mind (as explained

above), but also demonstrated Soave’s—that he took Kilpatrick’s

demands seriously enough to implement them within Inland.

The remaining statements were similarly admissible. For example,

the statements by Lakeshore’s executives, Avinash Rachmale and Tom

Hardiman, provided contemporaneous evidence that they feared losing

work if Lakeshore did not cave to Ferguson. (R.352: Tr. 8178–79, 8191–

92; R.357: Tr., 8785–86; R.379: Tr., 11231). Tim Tousignant’s reaction

(“this is extortion”) likewise conveyed his state of mind after Ferguson’s

threats. (R.379: Tr., 11152–53). And it echoes the out-of-court statement

that this Court found admissible in Collins, 78 F.3d at 1028, 1036

(“those guys are tough”).

The same reasoning applies to Walbridge’s executives, who were

“angry” and “worried they weren’t going to get the contract” when


70

Bernard Parker relayed Miller’s demand to hire Ferguson. (R.379: Tr.,

11186–87, 11193). Parker’s testimony described the executives’

contemporaneous reaction: their fear of what would happen if they

refused to yield. Again, that testimony mirrors extortion testimony that

this Court has approved previously. E.g., Collins, 78 F.3d at 1028, 1036

(approving testimony that the victim “reacted angrily”); see also 4

Mueller & Kirkpatrick, Federal Evidence § 8:71 (4th ed.) (approving

testimony that the victim said, “I’m afraid X is going to kill me if I don’t

pay him”).

Ferguson’s remaining argument loses because he already won it. At

trial, when Parker testified that Walbridge’s executives had “said that

[Ferguson] wasn’t the lowest bidder,” the defendants objected and

requested a sidebar. (R.379: Tr., 11187–90). At sidebar, the district

court agreed with the defendants and instructed Parker not to

volunteer “what somebody else said.” (Id., 11189–90). Satisfied, the

defendants did not request any further remedy. (Id.). And in his brief,

Ferguson does not suggest what other remedy he wanted—or why its

absence amounted to plain error. That omission forecloses any relief.

See United States v. Walker, 615 F.3d 728, 734–35 (6th Cir. 2010).


71

Ferguson’s complaints about the limiting instructions also fail.

Although Ferguson implies in his brief that the district court only gave

one limiting instruction, that is untrue: as in Collins, 78 F.3d at 1036,

the district court gave an instruction whenever the defendants

requested—and other times too. (E.g., R.342: Tr., 7198–99; R.352: Tr.,

8098; R.356: Tr., 8698–99; R.370: Tr., 10046; R.392: Tr., 13027; see also

R.380: Tr., 11286–87 (offering to give an instruction whenever

requested)). And as this Court emphasized in Collins, the defendants—

not the government or district court—had the burden to request any

limiting instructions. 78 F.3d at 1036. Where they failed to do so, they

“waived [their] right to complain.” Id.

Nor should the Court adopt Ferguson’s remedy of excluding all state-

of-mind testimony. A blanket prohibition would keep out some of “the

most convincing and reliable proof of fear,” 4 Mueller & Kirkpatrick,

Federal Evidence § 8:71 (4th ed.), arbitrarily cabining the evidence on

an essential element of the charges. It would also reward defendants

who threaten their victims indirectly—or whose victims are businesses

that necessarily use internal communications to relay and react to

threats.


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B. Any errors would be harmless given the victims’ firsthand testimony and other trial evidence.

Even if the Court assumed error, it would be harmless given the

other, uncontested evidence at trial. Erroneously admitted testimony is

harmless where it is “merely cumulative of other overwhelming and

largely uncontroverted evidence properly before the jury.” Brown, 411

U.S. at 231; see also United States v. Johnson, 581 F.3d 320, 332 (6th

Cir. 2009). Here, Soave’s firsthand account of Kilpatrick’s extortion was

far more compelling than McCann’s secondhand narration. The same

goes for the firsthand testimony of McCann, Hardiman, and

Rachmale—all of whom testified at trial, in far more detail, to the

events referenced in their out-of-court statements. Further, the

Walbridge count involved one of the most damning documents in the

entire trial: a hastily scrawled, one-page, handwritten, $12.7 million

subcontract that did not require Ferguson to post a bond and was

executed immediately before Walbridge was awarded the contract. (Ex.

WA1-14, App’x 514; R.379: Tr., 11194–97). Every bit of that document

screamed extortion.


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IV. The restitution amounts were not an abuse of discretion.

The defendants’ restitution obligations should be affirmed. This

Court reviews restitution for an abuse of discretion—legal questions de

novo, fact-findings for clear error. United States v. Boring, 557 F.3d 707,

713 (6th Cir. 2009). Neither of the defendants’ arguments suffices.

First, the district court did not clearly err in calculating the

restitution amounts to DWSD. Restitution “is calculated based on the

victim’s loss.” Id. at 714. And that is how the district court calculated it,

finding that the extortion-based payments were overpayments—and

thus a loss—for DWSD. (R.543: Tr., 16688–90).

Second, the district court correctly ordered restitution for Kilpatrick’s

tax offenses. Under 18 U.S.C. §§ 3583(d) and 3563(b)(2), the district

court could order restitution as a condition of supervised release. United

States v. Batson, 608 F.3d 630, 633–36 (9th Cir. 2010) (explaining the

statute); accord United States v. May, 568 F.3d 597, 607 n.6 (6th Cir.

2009). That is what it did. (R.516: Judgment, 16452–53).


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Conclusion

The judgments should be affirmed.

Respectfully submitted, Barbara L. McQuade

United States Attorney /s/ Andrew Goetz

Andrew Goetz Assistant United States Attorney 211 West Fort Street, Suite 2001 Detroit, MI 48226 Phone: (313) 226-9522 Fax: (313) 226-5892 Email: [email protected]

Dated: October 9, 2014


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Certificate of Compliance with Rule 32(a)

This brief complies with the type-volume limitation of

Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure because it

contains 13,852 words, excluding the parts of the brief exempted by

Rule 32(a)(7)(B)(iii). This brief complies with the typeface requirements

of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6)

because it has been prepared in a proportionally spaced typeface using

Microsoft Word in 14-point Century Schoolbook.

/s/ Andrew Goetz Andrew Goetz Assistant United States Attorney Eastern District of Michigan 211 West Fort Street, Suite 2001 Detroit, MI 48226 Phone: (313) 226-9522 Fax: (313) 226-5892 Email: [email protected]


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Certificate of Service

I certify that on October 9, 2014, I electronically filed this brief for

the United States with the Clerk of the United States Court of Appeals

for the Sixth Circuit using the ECF system, which will send notification

of such filing to the following:

Harold Z. Gurewitz, [email protected] Susan W. Van Dusen, [email protected]

/s/ Andrew Goetz

Andrew Goetz Assistant United States Attorney Eastern District of Michigan 211 West Fort Street, Suite 2001 Detroit, MI 48226 Phone: (313) 226-9522 Fax: (313) 226-5892 Email: [email protected]


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Relevant District Court Documents

Appellee, the United States of America, designates as relevant the

following documents available electronically in the district court’s

record, case number 2:10-cr-20403 in the Eastern District of Michigan:

Record Number Document Description Page ID Range

4 Notice of Attorney Appearance 37

10 Motion to Appoint Counsel 44–48

12 Order Appointing Counsel 51–52

74 Fourth Superseding Indictment 383–484

153 Defendants’ Motion Reply Regarding Interpretations 1312–1316

199 Opinion and Order Regarding Potential Conflict of Interest 1560–1575

200 Order Appointing Independent Counsel 1576

203 Thomas Conflict Memorandum 1580–1643

204 Government’s Conflict Brief 1644–1656

206 Conflict Hearing Tr. 08/07/12 1670–1697

207 Appointment of Harold Gurewitz as Independent Counsel 1698

247 Mercado Plea Agreement 1831–1838

277 Jury Verdict Form 2213–2234

301 Jury Trial Tr. 09/21/12 4638–4755

302 Jury Trial Tr. 09/24/12 4756–4929


78


330 Jury Trial Tr. 09/27/12 5389–5551

331 Jury Trial Tr. 09/28/12 5552–5671

332 Jury Trial Tr. 10/01/12 5672–5803

334 Jury Trial Tr. 10/03/12 5944–6069

335 Jury Trial Tr. 10/04/12 6070–6213

336 Jury Trial Tr. 10/05/12 6214–6367

337 Jury Trial Tr. 10/09/12 6368–6514

338 Jury Trial Tr. 10/10/12 6515–6662

339 Jury Trial Tr. 10/11/12 6663–6834

340 Jury Trial Tr. 10/16/13 6835–7006

341 Jury Trial Tr. 10/17/12 7007–7138

342 Jury Trial Tr. 10/18/12 7139–7289

347 Jury Trial Tr. 10/19/12 7297–7480

348 Jury Trial Tr. 10/22/12 7481–7597

350 Jury Trial Tr. 10/24/12 7745–7901

351 Jury Trial Tr. 10/25/12 7902–8062

352 Jury Trial Tr. 10/26/12 8063–8211

353 Jury Trial Tr. 10/29/12 8212–8319

354 Jury Trial Tr. 11/13/12 8320–8471

355 Jury Trial Tr. 11/14/12 8472–8601


79


356 Jury Trial Tr. 11/15/12 8602–8736

357 Jury Trial Tr. 11/16/12 8737–8809

358 Jury Trial Tr. 11/26/12 8810–8958

359 Jury Trial Tr. 11/27/12 8959–9108

360 Jury Trial Tr. 11/28/12 9109–9247

361 Jury Trial Tr. 11/29/12 9248–9381

362 Conflict Hearing Tr. 08/14/12 9382–9429

367 Jury Trial Tr. 11/30/12 9535–9650

368 Jury Trial Tr. 12/03/12 9651–9783

369 Jury Trial Tr. 12/04/12 9784–9929

370 Jury Trial Tr. 12/05/12 9930–10075

372 Jury Trial Tr. 12/07/12 10223–10357

373 Jury Trial Tr. 12/10/12 10358–10409

374 Jury Trial Tr. 12/12/12 10410–10553

375 Jury Trial Tr. 12/13/12 10554–10690

376 Jury Trial Tr. 12/14/12 10691–10861

377 Jury Trial Tr. 12/17/12 10862–11009

378 Jury Trial Tr. 12/18/12 11010–11128

379 Jury Trial Tr. 12/19/12 11129–11280

380 Jury Trial Tr. 12/20/12 11281–11422


80


381 Jury Trial Tr. 12/21/12 11423–11573

382 Jury Trial Tr. 12/06/12 11574–11720

384 Jury Trial Tr. 01/04/13 11871–12026

385 Jury Trial Tr. 01/07/13 12027–12170

386 Jury Trial Tr. 01/08/13 12171–12295

387 Jury Trial Tr. 01/10/13 12296–12450

389 Jury Trial Tr. 01/14/13 12594–12750

390 Jury Trial Tr. 01/15/13 12751–12848

391 Jury Trial Tr. 01/16/13 12849–12985

392 Jury Trial Tr. 01/17/13 12986–13102

394 Jury Trial Tr. 01/22/13 13193–13340

396 Jury Trial Tr. 01/24/13 13468–13607

397 Jury Trial Tr. 01/25/13 13608–13746

399 Jury Trial Tr. 01/28/13 13749–13891

400 Jury Trial Tr. 01/29/13 13892–14008

401 Jury Trial Tr. 01/31/13 14009–14155

406 Jury Trial Tr. 02/11/13 14404–14506

425 Sealed Conference Tr. 12/05/12 15060–15066

426 Sealed Conference Tr. 12/10/12 15067–15085

463 Rule 33 Order 15636–15709


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516 Kilpatrick Judgment 16446–16456

543 Restitution Hearing Tr. 12/10/13 16677–16704
