Kilpatrick Appeal

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

COA #: 13-2500
UNITED STATES OF AMERICA
Plaintiff/Appellee,
v.
KWAME KILPATRICK
Defendant/Appellant
On Appeal from the United States District Court
for the Eastern District of Michigan
Southern Division
APPELLANTS BRIEF
Harold Gurewitz (P14468)
Attorney for Appellant
Gurewitz & Raben, PLC
333 W. Fort Street, Suite 1400
Detroit, MI 48226
(313) 628-4733
Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 1
TABLE OF CONTENTS
Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement in Support of Request for Oral Argument. . . . . . . . . . . . . . . . . . . . . . viii
Statement of Subject Matter and Appellate Jurisdiction. . . . . . . . . . . . . . . . . . . . . 1
Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of the Case and Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Statement of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Adoption of Statement of Facts by Appellant Bobby Ferguson in Case
No. 14-1120 and Kilpatricks Additional Facts... . . . . . . . . . . . . . . . . . . . . . 5
C. Conflict of Interest Chronology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I. KWAME KILPATRICK WAS DENIED HIS RIGHT TO CONFLICT-FREE
REPRESENTATION GUARANTEED BY THE SIXTH AMENDMENT AND
SHOULD BE GRANTED A NEW TRIAL. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Standard of Review: This Court reviews district court legal
conclusions concerning defense counsel conflicts of interest de novo,
and the underlying factual bases upon which the courts conclusions
rest, for clear error. United States v. Osborne, 402 F3d 626,630 (6
th
Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
A. THOMAS AND NAUGHTON HAD CONFLICTS OF INTEREST
ADVERSE TO THE OREILLY FIRM TO WHICH THEY
WERE OF COUNSEL ATTORNEYS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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B. THE COURT DENIED KILPATRICK HIS SIXTH AMENDMENT
RIGHT TO CONFLICT-FREE COUNSEL BECAUSE IT FAILED
TO THOROUGHLY INVESTIGATE AND RESOLVE THOMAS
AND NAUGHTONS CONFLICTS AFTER IT WAS ON
NOTICE OF THEM... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. THOMAS AND NAUGHTONS CONFLICTS OF INTEREST
DEPRIVED KILPATRICK OF EFFECTIVE ASSISTANCE OF
COUNSEL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ISSUE II: THE TRIAL COURT ERRED BY ALLOWING LAY OPINION
TESTIMONY BY CASE AGENTS THAT LACKED
FOUNDATION REQUIRED BY FRE 701 AND THAT
EXCEEDED THE LIMITS OF THE RULE. THE ERROR WAS
NOT HARMLESS... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Standard of Review: This court reviews district court evidentiary
rulings, including rulings on witness testimony under FRE 701 for
abuse of discretion. United States v. Freeman, 730 F3d 590, 595 (6
th
Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
A. TESTIMONY AS DE FACTO EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . 47
B. HEARSAY - TESTIMONY BY AGENTS FROM REVIEW OF
RECORDS... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
C. INTERPRETATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1. Kilpatrick Civic Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
2. DLZ And Contracts CM-2012, 2014 and 2015. . . . . . . . . . . . 51
3. Inland Waters and Contracts 1361 and 1368. . . . . . . . . . . . . 55
4. Heilman Recreation Center. . . . . . . . . . . . . . . . . . . . . . . . . . . 57
5. Baby Creek and Patton Park PC-748. . . . . . . . . . . . . . . . . . . 58
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6. Synagro. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
D. THE COURTS ERROR IN ADMITTING THE AGENTS
TESTIMONY WAS NOT HARMLESS.. . . . . . . . . . . . . . . . . . . . . . . . . . . 59
III. RESTITUTION TO DWSD AND IRS WAS NOT AUTHORIZED BY 18 USC
3664A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Standard of Review: This Court reviews de novo whether a restitution
order is permitted. The amount of restitution is reviewed for abuse of
discretion. United States v. Williams, 612 F3d 500, 510 (6 Cir,
th
2010). This court abuses its discretion when it applies an improper
legal standard. United States v. Andrews, 88 Fed Appx 903, 908 (6
th
Cir, 2004).... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
IV. ADOPTION OF ARGUMENTS BY CO-DEFENDANT BOBBY W. FERGUSON
IN UNITED STATES V. BOBBY W. FERGUSON, SIXTH CIRCUIT CASE NO.
14-1120... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Proof of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Addendum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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TABLE OF AUTHORITIES
SUPREME COURT CASES: Page
Cuyler v. Sullivan, 446 US 335 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 32
Holloway v. Arkansas, 435 US 475 (1978).. . . . . . . . . . . . . . . . . . . . . . . . 16, 19, 25
Hughey v. United States, 495 US 411 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Mickens v. Taylor, 535 US 162 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 33, 34
Nix v. Whiteside, 106 S Ct 988 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Strickland v. Washington, 466 US 668, 692 (1984). . . . . . . . . . . . . . . . . . . . . . . . 20
Wood v. Georgia, 450 US 261 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SIXTH CIRCUIT CASES:
Centra, Inc. v. Estrin, 538 F3d 402 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
Harris v. Carter, 337 F3d 758 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
McFarland v. Yukins, 356 F3d 688 (2004). . . . . . . . . . . . . . . . . . . . . . 16, 19, 29, 33
United States v. Andrews, 88 Fed Appx 903 (2004).. . . . . . . . . . . . . . . . . . . . . . . 61
United States v. Butler, 297 F3d 505 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
United States v. Edkins, 421 Fed Appx 511 (11/18/10) . . . . . . . . . . . . . . . . . . . . 63
United States v. Freeman, 730 F3d 590 (2013). . . . . . . . . . . . . . . . . . . . . 16, 35, 38
United States v. Osborne, 402 F3d 626 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Williams, 612 F3d 500 (6 Cir, 2010).. . . . . . . . . . . . . . . . . . . . . 61
th
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OTHER CIRCUIT CASES:
Atley v. Ault, 191 F3d 865 (8 Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
th
Salts v. Epps, 676 F3d 468 (5 Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
th
Selsor v. Kaiser, 81 F3d 1492 (10 Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
th
The People ex rel. Dept. of Corp. v. Speedee Oil Change Systems, Inc.,
20 Cal. 4 1135, 980 P2d 371 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24
th
United States v. Anderson, 545 F3d 1072 (DC Cir. 2008). . . . . . . . . . . . . . . . . . . 63
United States v. Badaracco, 954 F2d 928 (3 Cir, 1992).. . . . . . . . . . . . . . . . . . . 62
rd
United States v. Batson, 608 F3d 630 (9 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . 62
th
United States v. Figueroa-Lopez, 125 F3d 1241 (9 Cir. 1997). . . . . . . . . . . . . . 47
th
United States v. Freeman, 498 F3d 893 (9 Cir. 2007). . . . . . . . . . . . . . . . . . . . . 41
th
United States v. Galloway, 509 F3d 1246 (10th Cir, 2007). . . . . . . . . . . . . . . 61-62
United States v. Garcia, 413 F3d 201 (2 Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . 41
nd
United States v. George, 403 F3d 470 (7th Cir, 2005). . . . . . . . . . . . . . . . . . . . . . 62
United States v. Grinage, 390 F3d 746 (2 Cir. 2004). . . . . . . . . . . . . . . . . . . . . 41
nd
United States v. Hampton, 718 F3d 978 (DC Cir. 2013). . . . . . . . . . . 41, 42, 43, 60
United States v. Jayyousi, 657 F3d 1085 (11 Cir. 2011).. . . . . . . . . . . . . . . . . . . 39
th
United States v. Johnson, 617 F3d 286 (4 Cir. 2010). . . . . . . . . . . . . . . . 41, 42, 47
th
United States v. Levy, 25 F3d 146 (2 Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . 33
nd
-vi-
United States v. Peoples, 250 F3d 630 (8 Cir. 2001). . . . . . . . . . . . . . . . 41, 47, 60
th
STATE OF MICHIGAN CASES
Avink v. SMG, 282 Mich App 110 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
RULES & STATUTES
Harvard Law Review, 98 Harv L Rev 1023, n.5, 1985. . . . . . . . . . . . . . . . . . . . . 21
Pollack, Milton, Parallel Civil and Criminal Proceedings,
129 FRD 201 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
FRE 701. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
-vii-
STATEMENT IN SUPPORT OF
REQUEST FOR ORAL ARGUMENT
Pursuant to FRAP 34(a)(1) and Sixth Circuit Rule 34(a), Appellant Kwame
Kilpatrick respectfully requests oral argument. Counsel for Appellant believes oral
argument will assist this Court in rendering its decision because of the complex
and extensive record and because of the nature of the legal issues.
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STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION
PURSUANT TO FRAP RULE 28(A)(4)
The federal district court had jurisdiction of this case pursuant to 18 USC
3231 because the Government alleged violations of 18 USC 666(a); 1341,
1343, 1951, 1962(d), and 26 USC 7201 and 7206. The Court of Appeals for
the Sixth Circuit has jurisdiction pursuant to 28 USC 1291.
The appeal is from the district courts Judgment dated December 17, 2013.
(R516, Judgment, Pg ID 16446).
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STATEMENT OF THE ISSUES
I. KWAME KILPATRICK WAS DENIED HIS RIGHT TO CONFLICT-FREE
SHOULD BE GRANTED A NEW TRIAL
II. THE TRIAL COURT ERRED BY ALLOWING LAY OPINION TESTIMONY
BY CASE AGENTS THAT LACKED FOUNDATION REQUIRED BY FRE
701 AND THAT EXCEEDED THE LIMITS OF THE RULE. THE ERROR
WAS NOT HARMLESS.
III. RESTITUTION TO DWSD AND IRS WAS NOT AUTHORIZED BY 18 USC
3664A.
IV. ADOPTION OF ARGUMENTS BY CO-DEFENDANT BOBBY W. FERGUSON
IN UNITED STATES V. BOBBY W. FERGUSON, SIXTH CIRCUIT CASE NO.
14-1120.
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STATEMENT OF THE CASE AND FACTS
A. PROCEEDINGS
Kwame Kilpatrick (Kilpatrick) was charged as the only defendant in a 14-
count Indictment on June 23, 2010, with fraud and tax offenses. (R1, Indictment,
Pg ID 16-30). A First Superseding Indictment that added a charge of RICO
Conspiracy was filed on December 15, 2010. (R20, 1 Superseding Indictment, Pg
st
ID 65-155). It named Kilpatrick, Bobby Ferguson, Bernard Kilpatrick (Kwame
Kilpatricks father), and Victor Mercado as defendants.
Trial began on September 6, 2012, on charges contained in the Fourth
Superseding Indictment - Redacted (although not electronically docketed until
February 15, 2013), in which Kilpatrick was charged in 30 counts. (R274, 4
th
Superseding Indictment-Redacted, Pg ID 2166-90). Those charges were: Count 1,
RICO conspiracy in violation of 18 USC 1962(d) (Id, Pg ID 2166-76); Counts 2-
5 and 7-10, extortion under color of official right and fear of economic harm in
violation of 18 USC 1951 (Id, Pg ID 2177-81); Counts 16-17, bribery concerning
programs receiving federal funds in violation of 18 USC 666(a) (Id, Pg ID 2181-
82); Counts 18-30, mail or wire fraud in violation of 18 USC 1341 or 1343 (Id,
Pg ID 2182-84); Counts 31-35, subscribing false tax returns for the calendar years
2004-2007 in violation of 26 USC 7206(1) (Id, Pg ID 2184-87); and, Count 36,
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income tax evasion in violation of 26 USC 7201. (Id, Pg ID 2188). Count 1
1
incorporated all but the tax offenses as part of the alleged conspiracy. James
Thomas (Thomas) filed his appearance as counsel at Kilpatricks arraignment on
the Indictment. (R4, Appearance, Pg ID 37). Thomas was appointed to represent
Kilpatrick pursuant to the Criminal Justice Act two days later. (R8, CJA 20, Pg ID
42). Michael Naughton (Naughton) was also appointed as counsel for Kilpatrick
pursuant to the Criminal Justice Act (for technical support). (R12, Order Granting
Secondary Counsel, Pg ID 51-52).
Trial concluded on March 11, 2013 with the return of guilty verdicts for
Kilpatrick on 24 counts: Count 1, RICO conspiracy; Counts 2-5 and 9, Extortion;
Count 17, Bribery; Counts 18-26, Mail fraud; Counts 28, 30,Wire fraud; Counts
31-35, Subscribing false tax returns; and, Count 36, Income tax evasion. (R277
Verdict Form, Pg ID 2213-34).
Kilpatrick was sentenced on October 10, 2013, to 336 months (28 years)
All four defendants were charged in Count 1. Ferguson was also charged
1
together with Kilpatrick in Counts 2 -5, 7-10 and 16-17. (R274, 4 Superseding
th
Indictment, Redacted, Pg ID 2166-90). Mercado entered a guilty plea during trial
on November 5, 2012 to a charge of conspiracy in violation of 18 USC371.
(R245, 5 Superseding Information, Pg ID 1826-29; R247, Rule 11 Agreement, Pg
th
ID 1831-38). Derrick Miller entered a guilty plea before trial, on September 12,
2011, to bribery and subscribing to a false tax return.(R67, 2 Superseding
nd
Information, Pg ID 252-54; R70, Rule 11 Agreement, Pg ID 258-78).
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custody and three years supervised release. (R516, Judgment, Pg ID 16450-51).
On December 17, 2013, the court entered a judgment that included forfeiture in the
amount of $4,584,423; and restitution of $4,584,423 to the Detroit Water and
Sewerage Department (DWSD) and $195,403.61 to the Internal Revenue
Service (IRS). (Id, Pg ID 16453).
2
B. ADOPTION OF STATEMENT OF FACTS BY APPELLANT BOBBY FERGUSON IN
CASE NO. 14-1120 AND KILPATRICKS ADDITIONAL FACTS.

Pursuant to FRAP 28(i), Kilpatrick hereby adopts by reference the
Statement of Facts appearing in Appellant Bobby Fergusons brief, Case No. 14-
1120, at pages 6-23. Additional facts on behalf of Kilpatrick are set forth below.
The Governments presentation of evidence at trial followed its indictment
allegations that Kilpatrick received funds during his tenure as mayor from co-
defendant Bobby Ferguson (Ferguson), others doing business with the city, and
from a non-profit civic organization he had established, the Kilpatrick Civic Fund
(KCF), that he did not report on his tax returns. Kilpatrick was the Mayor of the
Ferguson was convicted of Count 1, RICO; Counts 2-5 and 7-9 -
2
Extortion; and, 17, Bribery. He was sentenced to 252 months custody. (R519,
Judgment, Pg ID 16474-85). Bernard Kilpatrick was found guilty on one count of
violating 26 USC 7206, Subscribing False Tax Return. He was sentenced to a
term of 15 months custody. (R518, Judgment, Pg ID 16467-73). Miller and
Mercado were each sentenced to 1 day custody, time served. (R557, Mercado
Judgment, Pg ID 16805-10; R558, Miller Judgment, Pg ID 16811-16).
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City of Detroit from January 2002 until he resigned in September 2008. Much of
the testimony at trial concerned Ferguson, his companies, and work his companies
performed on city contracts. It was part of the Governments theory that Kilpatrick
steered city construction contracts to Ferguson and that Ferguson shared his
profits with Kilpatrick. (R301, TR 9/21/12, Govt Opening, Pg ID 4661-63; R406,
TR 2/11/13, Govt Closing, Pg ID 14452). Fergusons profits on that work also
were used to determine Kilpatricks sentence guidelines pursuant to USSG 2C.1,
and imposition of a 28 year sentence. (R492, 10/10/13, Sentencing, Pg ID 16165-
67, 16220-21).
Ferguson performed excavation work for the city prior to the Kilpatrick
administration. He was a long time friend of the mayor and it was understood by
Derrick Miller, Kilpatricks chief of staff, that he should help Ferguson in his
dealings with the city. (R385, TR 1/7/13, Miller, Pg ID 12136-43). Ferguson
aggressively sought out work with engineering companies doing work on city
contracts for his companies, Ferguson Enterprises, Inc, (FEI), and Xcel
Construction Services (Xcel). (R352, TR 10/26/12, Hardiman, Pg ID 8090). He
was more difficult to negotiate with than other contractors and often pushed hard
for more work, more money, or both. (R350, TR 10/24/12, Rajadhyaksha, Pg ID
7768; R372, TR 12/6/12, McCann, Pg ID 10297; R370, TR 12/5/12, Soave, Pg ID
-6-
10049). One firm, Lakeshore Engineering (Lakeshore), chose to include
Ferguson as part of its team on a city contract because he was doing a lot of work
for the city and seemed to know how to get things done in the city administration.
(R352, TR 10/26/12, Hardiman, Pg ID 8127).
Fergusons companies typically performed excavation subcontractors for
large engineering firms specialized in performing municipal infrastructure work.
(Id, Pg ID 8072). These firms included Walbridge Aldinger (Walbridge), a
diversified engineering company with about $2 billion in revenues. (R379, TR
12/19/12, Parker, Pg ID 11168); Lakeshore Engineering, that performed municipal
contracts ranging in size from $500,000 to $250 Million (R356, TR 11/15/12,
Rachmale, Pg ID 8632); DLZ, a 700 employee company that had about $700
million in gross revenue (R350, TR 10/24/12, Rajadhyaksha, Pg ID 7750-52); and,
Inland Waters Pollution Control, Inc. (Inland) an engineering firm specialized in
municipal infrastructure work. (R370, TR 12/5/12, Soave, Pg ID 10027-31). Each
had a history of doing work for the Detroit Water and Sewer Department
(DWSD).
From 2002 to 2008, DWSD sought bids on as many as 60 contracts, having
a total value of about $2.7 billion, to maintain its operations, to supply water, and
to provide sewerage services for most of southeastern Michigan. The DWSD
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operates the third largest system of its kind in the United States. (R348, TR
10/22/12, Edwards, Pg ID 7485-88). It was run by a director appointed by the
mayor. From 2003 to 2008, the Director was Victor Mercado (Mercado). (Id, Pg
ID 7488). He reported both to the mayor and to the supervising federal court judge
under the federal consent decree. (Id, Pg ID 7490-91).
The DWSDs complicated contracting process includes solicitation and
evaluation of bids or proposals. City finance, law and human rights departments
play roles as well, including equalization of bids pursuant to city ordinances to
give preferences to city contractors. (Id, Pg ID 7492-98). DWSD contracts finally
must be authorized by a city council vote, without any required approval by the
mayor. In certain cases, the Mayor acting as Special Administrator, was
empowered to sign contracts without a city council vote. The Mayors status as
Special Administrator was the result of his appointment by a federal court judge
acting in a lawsuit filed in 1977 by the Environmental Protection Agency (EPA)
alleging department violations of federal regulations. (Id, Pg ID 7487-91, 7508).
Only three of the contracts referred to in the Indictment were issued based on this
authority: DLZ contract CM-2012 (Id, Pg ID 7510-13); Walbridge contract PC-
748 (R386, Miller, TR 1/8/13, Pg ID 12255-56); and, Inland contract CS-1368,
Amendment IV (sewer collapse)(Id, Pg ID 12217-18). None of the other contracts
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had a need to pass over the mayors desk for his signature.
Testimony about the contracting process with DLZ, Walbridge, Lakeshore
and Inland came from owners or executives of those companies. The only ones to
testify about any contact with Kilpatrick were Anthony Soave of Inland (R370, TR
12/5/12, Soave, Pg ID 10035-36) and Bernard Parker of Walbridge (R379, TR
12/19/12, Parker, Pg ID 11156).
Evidence of Kilpatricks knowledge or any involvement in the contracting
process was otherwise based on text messages or intercepted calls. FBI Agent
Robert Beeckman (Beeckman) and EPA Criminal Investigator Carol
Paszkiewicz (Paszkiewicz) testified in a serial fashion, about a dozen times
each, for each of the contracts and other parts of the RICO allegations as narrators
of the Governments case to interpret the messages and explain involvement of
city officials assisting Ferguson at Kilpatricks direction, the so-called steering.
(R409, TR 2/15/13, Govt Rebuttal Closing, Pg ID 14773).
C. CONFLICT OF INTEREST CHRONOLOGY
A chronology of events relevant to the conflicts of interest discussed in
Issue I is as follows:
2005 Thomas represents Gaspar Fiore (Fiore) in a federal
investigation concerning a local public bus system in 2005.
(R203, Memo re Conflict, Pg ID 1581-82).
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2007 Thomas represents Fiore in 2007 in a federal investigation in
which it is alleged that Fiore made a $25,000 contribution to
the Kilpatrick campaign in July, 2004, through a PAC
maintained by the Allen Brothers Law Firm. (R206, TR 8/7/12,
Hearing, Pg ID 1684-86).
2008 Thomas begins representing Kilpatrick in a series of nine
separate matters. (R203, Memo re Conflict, Pg ID 1581-82).
2010 Thomas refers Fiore to another attorney, Robert Morgan, in
2010. (Id, Pg ID 1580-86).
6/23/10 An Indictment is filed naming Kilpatrick in 19 counts of mail
and wire fraud and tax violations. (R1, Indictment, Pg ID 16-
30).
7/15/10 Thomas is appointed to represent Kilpatrick in the criminal
case for the purpose of continuity. (R203, Memo re Conflict,
Pg ID 1586; R362, TR 8/14/12, Hearing, Pg ID 9386-87).
Naughton is also appointed as a technical support attorney.
(R12, Order, Pg ID 51).
12/15/10 A 1 Superseding Indictment (R20, Pg ID 65-155) is filed
st
adding charges of RICO, bribery, and extortion, and adding
Bobby Ferguson, Bernard Kilpatrick, Victor Mercado and
Derrick A. Miller as defendants.
7/18/11 A civil Complaint is filed in Macomb Interceptor Drain
Drainage District v. Kwame M. Kilpatrick, et al. Case No. 11-
CV-13101, US District Court, Eastern District of Michigan.
(Macomb Drain litigation). (11-13101: R1, Complaint). It
3
names 32 individuals or businesses as defendants, including
Kilpatrick as the lead defendant. Counsel for the plaintiff is the
law firm of OReilly Rancilio, P.C. (the OReilly firm). The
Record references hereinafter for the Macomb Drain litigation will be
3
referred to as 11-13101.
-10-
suit alleges a RICO claim parallel to the criminal indictment
against Kilpatrick. It attaches the criminal indictment as
Exhibit A. Also named as defendants are: Mercado, Ferguson,
Derrick Miller and Bernard Kilpatrick.
9/15/11 Thomas and Naughton file an answer to the civil complaint on
behalf of Kilpatrick on September 15, 2011. (11-13101: R42,
Answer To Complaint, Pg ID 471-83).
11/16/11 Third Superseding Indictment is filed (R72, Pg ID 280-380).
1/24/12 Fiore is interviewed by the FBI concerning his contribution to
the Kilpatrick campaign. (R203, Memo re Conflict, Pg ID
1587).
2/03/12 The OReilly firm moves to amend the complaint in the
Macomb Drain litigation to add substantial factual
background information regarding (a) the larger scheme at
issue in this case... (11-13101: R176, Motion to File Amended
Complaint, Pg ID 2542-46).
2/10/12 Thomas and Naughton move to withdraw as counsel for
Kilpatrick in the civil case citing their inability to work with
Kilpatrick. (11-13101: R181, Motion To Withdraw, Pg ID
2832).
2/15/12 Fiore testifies before the grand jury about, inter alia, his
$25,000 campaign contribution made through the Allen
Brothers Law Firm PAC. (Memo re Conflict, Pg ID 1606;
R206, TR 8/7/12, Conference, Pg ID 1687).
2/15/12 A Fourth Superseding Indictment (R74) is filed against
Kilpatrick and others adding allegations that the Kilpatrick
enterprise received $80,000 from Fiore between 2003 and 2008
to influence the award of Detroit Police towing contracts and
that Fiore was extorted by Kilpatrick and Ferguson.

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2/17/12 Thomas and Naughton re-file their motion to withdraw in the
civil suit with a Kilpatrick stipulation to the withdrawal. The
motion is held in abeyance to allow Kilpatrick to obtain other
counsel. (11:13101: R197 Order Holding In Abeyance, Pg ID
2978-79).
3/12/12 The court in the civil case enters an order to hold counsels
motion in abeyance to allow Kilpatrick to obtain substitute
counsel, citing the complexity and Kilpatricks central role in
the case.(11:13101: R197, Order Holding In Abeyance, Pg ID
2978-79).
3/21/12 Thomas and Naughton notify the court in the civil case that
they must withdraw for a separate reason, because they will
become of counsel to the OReilly firm on April 1, 2012 and
will have disqualifying conflicts of interest mandating
withdrawal pursuant to Rules of Professional Responsibility.
(11-13101: R198, Supplement To Motion To Withdraw, Pg ID
2980-82).
3/28/12 Judge Cleland issues an order in the civil case granting their
motion to withdraw. (11-13101: R199, Order Granting Motion
To Withdraw, Pg ID 2984-86).
4/1/12 Thomas and Naughton become of counsel to the OReilly firm.
(R203, Memo re Conflict, Pg ID 1581).
4/3/12 Thomas receives the FBI 302 of Fiores interview. (Id, Pg ID
1587).
6/1/12 Thomas receives the Government witness list listing Fiore as a
witness against Kilpatrick. (Id, Pg ID 1588).
8/7/12 Thomas and Kilpatrick meet with Judge Edmunds. Thomas
tells Judge Edmunds that he cannot cross-examine Fiore and
that Kilpatrick wants him to withdraw because of his conflict.
(R206, TR 8/7/12, Conference, Pg ID 1672-89).
-12-
8/9/12 Judge Edmunds asks the parties to brief every possible conflict
of which counsel or defendants are aware, including the
conflict involving representation of conflicting interests,
specifically the representation of the plaintiff in the Macomb
Drain litigation by the OReilly firm, as discussed in the Detroit
Free Press that day. (R204, Govt Response to Potential
Conflict, Pg ID 1654).
8/13/12 The Governments Brief on conflicts says that to resolve
Thomas prior representation conflict it would withdraw the
Fiore allegations in the Indictment. It briefly adds that Thomas
relationship to the OReilly firm constituted no conflict
because of its understanding of Thomas separate primary
office and file system. (Id, Pg ID 1644).
8/13/12 Thomas brief says that his attorney-client relationship with
Kilpatrick was unfettered until a complication arose concerning
prior representation of a witness. He says that his relationship
with the OReilly firm includes separate offices and file
systems. (Id, Pg ID 1654).
8/14/12 A conflict hearing is held before Judge Edmunds. Thomas says
that he should have seen the OReilly Macomb Drain litigation
and Kilpatrick conflict issue; that disciplinary rules require
consent from each client, and that he did not get it. (R362, TR
8/14/12, Hearing, Pg ID 9393). Kilpatrick says that he learned
of the full scope of the Fiore conflict on 8/7/12 and he was
losing confidence in Thomas. (Id, Pg ID 9403-9404; R203,
Memo re Conflict, Exhibit 4: Kilpatrick Affidavit, Pg. ID 1620,
1621-22).
4
Kilpatrick signed a conflict waiver in January 2011 that referred to
4
Thomas prior representation of Fiore (R203, Memo re Conflict, Waiver, Pg ID
1616-17), before he was aware Thomas had represented Fiore in a federal
investigation relating to the $25,000 contribution. (R362, TR 8/14/12, Hearing, Pg
ID 9388; R203, Memo re Conflict, Exhibit 4: Kilpatrick Aff., Pg. ID 1622) At
that time, while there was a disclosure of the representation of Witness A, it was
-13-
8/15/12 Judge Edmunds issues an order refusing to disqualify Thomas
and Naughton. She finds no prior representation conflict
because the government would dismiss the Fiore allegations.
Concerning Thomas and Naughtons of counsel relationship to
the OReilly firm, which was suing Kilpatrick for the same
RICO allegations they were defending in the indictment, the
trial court finds their conduct concerns prior representation (it
refers to MRPC 1.10(b), and that Thomas and Naughtons
separation of physical space and files, along with appointment
of another attorney to cross-examine witnesses connected to the
Macomb Drain litigation, will be sufficient. (R199, Opinion &
Order, Pg ID 1561, 1563-67).
9/6/12 The criminal trial begins.
9/24/12 Plaintiffs, represented by the OReilly firm, to which Thomas
and Naughton are of counsel, move a second time to amend the
Complaint in the civil case alleging that additional facts had
come to light, and add allegations about the Kilpatrick scheme
and Kilpatrick enterprise and unlawful payments to Kilpatrick.
(11-13101: R240, Motion to Amend, Pg ID 4047-48).
10/31/12 Judge Cleland grants Summary Judgment to the civil
defendants and denies the Plaintiffs motion to amend. (11-
13101: R251, Opinion & Order Granting Summary Judgment
and Denying Motion to Amend Complaint, Pg ID 4469-77).
11/14/12 Plaintiffs move for reconsideration and allege that informal
discovery from co-defendants and from the criminal
proceedings in the ongoing trial support their new allegations.
(11-13101: R256, Plaintiffs Motion for Reconsideration, Pg
ID 4774-83).
1/31/13 The Government rests and the defense began presentation of
witnesses in the criminal trial.
represented to be in an unrelated matter. (Id).
-14-
2/11/13 Closing arguments begin in the criminal case. Judge Cleland
denies the motion for reconsideration in the civil case. (11-
13101: R289, Amended Opinion & Order, Pg ID 5486-97).
SUMMARY OF THE ARGUMENT
In Issue One, Kilpatrick argues that he was denied his Sixth Amendment
right to effective assistance of counsel and to be represented by counsel free of the
conflicts of interest that arose when Kilpatricks counsel, Thomas and Naughton,
became of counsel to the OReilly firm on April 1, 2012, about six months before
the start of Kilpatricks trial. The OReilly firm was then counsel for the Macomb
Intermediate Drain Drainage District (MIDDD), a local government body suing
Kilpatrick in the Macomb Drain litigation for claimed substantial overbilling on
work done to repair a major sewer collapse in its jurisdiction. Its lawsuit
incorporated allegations of Kilpatricks indictment. The MIDDD claimed it was
the victim of a massive scheme orchestrated by Kilpatrick to steer contracts to
Bobby Ferguson. The Inland contracts were part of that scheme. As a result,
Thomas and Naughton were defending Kilpatrick in the criminal case on the very
same alleged acts of corruption that the firm to which they were of counsel sought
to establish in a parallel civil suit.
Kilpatrick also argues in Issue I that he was denied his Sixth Amendment
right to counsel by the district court when it failed to conduct the kind of hearing
-15-
required by Holloway v. Arkansas, 435 US 475 (1978), and when it failed to
replace Thomas and Naughton. Kilpatrick also argues that his counsel had an
actual conflict and was denied their effective representation because they failed to
bring their conflict to the attention of the court in the criminal case for over five
months, McFarland v. Yukins, 356 F3d 688 (6 Cir, 2004) while the court
th
scheduled pre-trial and trial proceedings.
In Issue II, Kilpatrick asks for a new trial because the district court erred by
allowing two case agents to repeatedly include inadmissible evidence in the guise
of lay opinion testimony. Defendants objected in a pre-trial motion in limine
because the testimony would be without foundation of the witnesses personal
knowledge. During trial, the agents together testified a total of 23 times to
introduce text messages, recorded calls, or documents related to the various parts
of the lengthy case. Their testimony was repeatedly based on their entire
investigation, a shorthand reference to the more than 300,000 text messages,
numerous intercepted calls and volumes of documents never presented to the jury,
on which they relied for their opinions. Their testimony included hearsay and
expert opinions. They told the jury what conclusions to draw. United States v.
Freeman, 730 F3d 590 (6 Cir. 2013). The courts abuse of discretion in allowing
th
the testimony was not harmless error. The agents interpretations of text messages
-16-
and intercepted calls was a pervasive part of the trial. It cannot be concluded
beyond a reasonable doubt that the error was harmless.
In Issue III, Kilpatrick asks that this Court conclude that the district court
order requiring restitution to the DWSD of $4,584,423, be reversed because the
court relied on evidence of profit instead of loss. He also asks this Court to
conclude that the District Court was without authority to order $195,403.61 be
paid to the IRS.
ARGUMENT
ISSUE I: KWAME KILPATRICK WAS DENIED HIS RIGHT TO CONFLICT FREE
SHOULD BE GRANTED A NEW TRIAL.
Standard of Review: This Court reviews district court legal
conclusions de novo, and the underlying factual bases upon which the
courts conclusions rest, for clear error. United States v. Osborne, 402
F3d 626, 630 (6 Cir. 2005).
th
A. THOMAS AND NAUGHTON HAD CONFLICTS OF INTEREST ADVERSE TO
THE OREILLY FIRM TO WHICH THEY WERE OF COUNSEL
ATTORNEYS.

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

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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