United States v. Kwame Kilpatrick
798 F.3d 365
| 6th Cir. | 2015Background
- Kwame Kilpatrick (former Detroit mayor) and contractor Bobby Ferguson convicted after a six-month jury trial on RICO conspiracy, extortion, bribery, mail/wire fraud, and tax counts; Kilpatrick convicted on 24 counts, Ferguson on 9 counts.
- Kilpatrick’s lead trial counsel (Thomas and Naughton) became “of counsel” to a firm prosecuting a civil suit against Kilpatrick (O’Reilly Rancilio P.C.) during pretrial proceedings; the court investigated and declined to disqualify them after implementation of screening measures and other safeguards.
- Two case agents (EPA SA Paszkiewicz and FBI SA Beeckman) repeatedly gave lay-opinion testimony summarizing and interpreting thousands of texts, calls, and records; defendants objected pretrial and during trial.
- Multiple witnesses recounted statements made to them by others (out-of-court statements) introduced to show victims’ fear as an element of extortion; the court sometimes gave limiting instructions and treated some statements under Rule 803(3) and others as non-hearsay for effect on the listener.
- At sentencing the district court ordered Kilpatrick to pay restitution: $4,584,423 to the Detroit Water & Sewerage Department (DWSD) based on defendants’ gains/profit approximation, and $195,403.61 to the IRS (as a condition of supervised release for unpaid taxes).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conflict-free counsel (Thomas & Naughton’s "of counsel" ties) | Kilpatrick: attorneys had an actual conflict because their firm represented plaintiff in a civil suit tied to the same alleged acts, so prejudice is presumed | Thomas/Naughton: screened, separate offices/records, government dropped Fiore-related charges, no evidence counsel acted adversely | No actual conflict shown; no adverse effect on performance; disqualification not required; claim rejected |
| Case-agent lay-opinion testimony frequency & scope | Kilpatrick/Ferguson: agents impermissibly summarized collective-investigation materials, interpreted ordinary language, and smuggled inadmissible hearsay — akin to Freeman | Government: agents had personal, first-hand investigatory knowledge; testimony was background, identification, and permissible summary under Rule 1006/701 | Distinguishable from Freeman; agents’ testimony admissible as lay opinion/background/summary; any error harmless |
| Admission of out-of-court statements to show victims’ fear (hearsay) | Defendants: statements are hearsay and inadmissible to prove extortion elements | Government: statements not offered for truth but to show effect on hearer (fear) under Williams/Collins; limiting instructions where requested | Admissions proper as circumstantial proof of fear; Williams/Collins rule applies; no abuse of discretion; defendants waived some instruction claims |
| Restitution to DWSD and IRS | Kilpatrick: DWSD restitution improperly based on defendants’ gain not the victim’s actual loss; IRS restitution not authorized under MVRA | Government: $4.58M is a reasonable approximation of city’s loss given evidentiary difficulty; IRS restitution alternative as supervised-release condition | Convictions affirmed; restitution to DWSD vacated and remanded because gain cannot substitute for victim loss absent established direct correlation; IRS restitution permitted as supervised-release condition |
Key Cases Cited
- Wood v. Georgia, 450 U.S. 261 (constitutional right to conflict-free counsel)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong standard)
- Holloway v. Arkansas, 435 U.S. 475 (automatic reversal when codefense conflict forced on defendant)
- Burger v. Kemp, 483 U.S. 776 (presumed prejudice when counsel actively represents conflicting interests)
- United States v. Freeman, 730 F.3d 590 (agent lay-opinion limits; foundation and reliance on collective investigation)
- Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127 (analyzing imputed conflicts and ‘‘of counsel’’ relationships)
- United States v. Gadson, 763 F.3d 1189 (law-enforcement witness interpretation of intercepted communications)
- United States v. Albertelli, 687 F.3d 439 (limits on agents’ summary/identification testimony)
- United States v. Williams, 952 F.2d 1504 (admitting statements to show victim’s fear/their effect on the hearer)
- United States v. Zangari, 677 F.3d 86 (gain vs. loss analysis for MVRA restitution)