United States v. Emmanuel GyamfiUnited States v. Emmanuel Gyamfi
Case Information
*1 Bеfore: ROGERS and DONALD, Circuit Judges; ROSE, District Judge. _________________ COUNSEL
ON BRIEF: William W. Swor, Detroit, Michigan, for Appellant. Stephanie M. Gorgon, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
_________________ OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. In the Detroit Metropolitan Airport,
Customs and Border Patrol (“CBP”) officers stopped Appellant Emmanuel Gyamfi (“Gyamfi”)
while he was traveling to Detroit from Ghana. They found at least one kilogram of heroin neatly
packed in the inner lining of Gyamfi’s suitcase, allegedly without his knowledge. Gyamfi was
indicted and charged with importing heroin, in violation of
I.
On January 8, 2013, Gyamfi arrived at the Detroit Metropolitan Airport after a long trip from Ghana. When he arrived at the рrimary customs checkpoint, CBP Officer David Myers asked Gyamfi some basic questions about the purpose of his trip. As Gyamfi attempted to explain his travel itinerary, he began to stutter. Unable to understand Gyamfi’s words, Officer Myers directed Gyamfi to the secondary customs checkpoint. There, CBP Officer David Crocker also interrogated Gyamfi about the purpose and details of his trip. Again with a “thick and pronounced” stutter, Gyamfi attempted to explain that he was on his way to visit a cousin in Connecticut, but that he had changed his original departure date because his daughter fell ill when he had initially planned to leave. Appellant’s Br. 2. Officer Crocker selected Gyamfi’s baggage fоr inspection and escorted Gyamfi to the baggage control area, where three officers, Dawn Matthews, Seth Russell, and Nathan Evers, interrogated Gyamfi about the suitcase’s contents.
After the officers emptied the suitcase of its visible contents, Officer Evers picked up the suitcase and noticed that it still seemed to have somеthing in it. Officer Russell then ran the suitcase through an X-ray machine, which revealed images of an oddly shaped “green blob” inside the suitcase. CBP Supervising Officer Christopher Anaya then joined the investigation. Appellant’s Br. 3.
While Officer Evers placed Gyamfi in handcuffs, Officer Russell dismantled the suitcase, cut through its lining, and discovered a wrapped packаge containing 1.8 kilograms of heroin. Officers Evers and Anaya escorted Gyamfi to a “search room” where Officer Anaya asked Gyamfi a series of questions about whether he knew about the drugs in his suitcase. Gyamfi denied knowing anything about the contents and later testified at trial that his wife purchased the suitcase secondhand.
At trial, the government intrоduced testimony from Officers Myers, Crocker, Matthews, Evers, Russell, and Anaya, who all had interacted with Gyamfi on the day of his arrest. Four of the six officers consistently and similarly described Gyamfi as “nervous.”
Government’s direct examination of Officer Crocker: Q. And prior to even speaking to him, did you make any observations about him?
A. He seemed to be a little nervous, and his movements were sort of exaggerated . . . .
Q. What about the way he presented to you caused you to send him over [to] inspection?
A. Just the fact that he seemed nervous and fidgety, and also that he had changed his ticket before his travel . . . .
Government’s direct examination of Officer Matthews: Q. Can you describe the defendant’s appearance when he initially came to you with the suitcase?
A. When he was brought over to our arеa, I noticed he was sweating a lot and he was walking—as he was walking up to us with his head down, and when he place[d] his bags on the belt, I noticed his hands were trembling, and he seemed like he was either upset or nervous . . . .
Q. And as you were questioning him, can you describe generally his demeanor?
A. He was still nervous. As I was speaking to him[,] he was still wiping off his face and his brow with the paper towel, and he put it in his hands and moved it back and forth almost like a wringing type of fashion [sic].
Q. In your experience are people generally nervous at baggage control secondary?
Defense: Objection. Irrelevant. What other people are is irrelevant. Court: Ms. Prasad?
Government: I’ll move on.
Q. And he’s speaking with his language impediment?
A. Yeah. He was stammering, kind of like tripping over his own words, and I just figured that was because he was a little nervous . . . .
Government’s direct examination of Officer Evers: Q. When you came in contact with the defendant at the baggage control secondary, describe his demeanor.
A. He was escorted to us by Officer Crocker, and he appeared very nervous. He was sweating very bad. He was kind of stumbling when he walked over to us.
Q. Did he maintain eye contact with you?
Defense: Objection. Relevance. I mean, you know, I have not objected prior, but this really is all kind of—excuse the expression—voodoo testimony. It is sort of like Cam[u]s’ trial where we’re talking about whether or not he loved his mother, cried at his mother’s funeral. What he appeared to the officers is irrelevant.
Government: I strenuously disagrеe with that, your Honor. How he appeared and what he said is really relevant to the heart of this case.
Court: The objection is overruled . . . .
Q. Officer Evers, did you ask him why he was so nervous?
A. Yes, I did . . . .
Q. In fact, at any point did you ask him whose clothes are these?
A. When I pulled the items out, a lot of the items appeared that they were not going to fit him, and some were female items. So I remember asking him, because he was so nervous[,] I thought he was going to pass out . . . .
Government’s direct examination of Officer Anaya: Q. Can you describe the defendant’s demeanor at this point in the process? A. Once we started dismantling the bag, I remember looking over at him. He dropped his head. We call it the wind going out of your sails. It’s was [sic] just, you know, like giving up motion [sic], something like that.
Defense: Objection. Move to strike all the speculation, the commentary material. This witness is not been [sic] offered to—offer any kind of opinion.
Government: Well, your Honor, he was describing what he observed. Defense: He went beyond describing with a whole bunch of editorial is what we call it, and things of that nature.
Government: I can move on.
Court: All right [sic] . . . .
II.
Gyamfi makes three arguments on appeal: (1) that the district court abused its discretion
in admitting the CBP officers’ testimony because it failed to meet
A.
The standard of review is in dispute. The government contends that this Court must
review Gyamfi’s conviction and sentence for plain error because it contends that Gyamfi failed
to preserve his arguments by properly objecting to the contested admissions of officers’
testimony.
See United States v. Bostic
,
B.
Gyamfi first argues that the government failed to establish a proper foundation under
In
Freeman,
we concluded that, in order to satisfy
We have also held, however, that testimony about the appearance of a person is “a typical
example of
Gyamfi turns to our decision in
Freeman
for support, arguing that the CBP officers
similarly lacked sufficient personal knowledge to testify because they “did not establish what
personal experiences or first-hand knowledge led them to reach their interpretations” оf
Gyamfi’s demeanor as “nervous.”
See
Appellant’s Br. 19. Yet, the facts in
Freeman
are
materially different from the facts in this case. In
Freeman
, a defendant appealed his conviction
on the ground that the district court erred by permitting a Federal Bureau of Investigation
(“FBI”) agent to interpret the meaning of statements made during phone calls that the FBI
intercepted and played to the jury.
Freeman
, 730 F.3d at 592-94. For instance, the agent
interpreted the phrаse “We get rich, Ohio” to mean that the defendant was looking forward to
being paid for the victim’s murder.
Id.
at 593. The agent also interpreted “the count was fifty-
six twenty” to mean $5,620, in reference to money paid for killing the victim.
Id.
at 594. The
testimony was improper under
However, unlike the FBI agent in Freeman , the CBP officers here had the benefit of physical presence and active participation in the encounters with Gyamfi—that were unique and separate from anything that a juror could observe in court. In fact, the officers merely described their “own sensory and experiential observations,” distinct from аny broad conclusions or allegations directed to the merits of the case. For instance, the officers’ testimony included statements that Gyamfi was “fidgety,” that his movements were “exaggerated,” that his hands were “trembling,” that he was “tripping over his own words,” that he was “sweating very bad,” and ultimately that he appeared “nervous”—all of which a pеrson observes and understands based on experiences from everyday life. Appellant’s Br. 19-20. Therefore, the district court did not abuse its discretion, nor did it commit plain error in finding a sufficient personal knowledge basis for admission of the officers’ testimony.
C.
Second, Gyamfi argues that the district court’s admission of the officers’ testimony describing Gyamfi’s “nervоusness” was improper because the testimony prevented the jury from reaching its own conclusion. Gyamfi contends that the officers’ testimony improperly raised the inference that Gyamfi knew that he had heroin in his suitcase. Consequently, he argues that the testimony “affected the jury’s ability to fairly assess all the facts in evidence” because it “directly contradicted Gyamfi’s defense that he neither owned the suitcase” nor knew anything about the heroin contained therein. Appellant’s Br. 23. We disagree.
The issue here in some ways overlaps with the one raised regarding the officers’ alleged lack of personal knowledge. Gyamfi compares the admission of the CBP officers’ testimony to the impermissible admission in Freeman , but Gyamfi’s “nervousness” recounted by the officers was indeed a perception and not a legal conclusion. Gyamfi again cites a case where this Court found testimony interpreting recorded conversations inadmissible. Again, facts involving interpretations of recorded encounters are wholly distinct from facts where officers interpreted what they indeed perceived first-hand, in an encounter that cannot be re-played for a juror.
Although “nervousness” describes an emotion, the jury only considered testimony that described any ordinary person’s everyday observations from a first-hand account. Describing one as “nervous” is no different from describing one as “sad” or “hаppy,” which are all everyday, ordinary observations. True, had the officers speculated as to why Gyamfi appeared “nervous,” by expressly suggesting guilt, then, indeed, the testimony may have impermissibly suggested a legal conclusion.
Although one may infer knowledge of heroin possession based on the description of “nervousness,” criminal guilt is still far frоm the only inference one could draw. Alternatively, one could attribute Gyamfi’s nervousness to the fact that he is thousands of miles away from home, that he is in a foreign country, or due to apprehension about forgetting something on the plane. In other words, one could reasonably imagine someone looking “nervous” at an airport without having done anything wrong.
Further, Gyamfi argues that describing Gyamfi’s gestures as a “giving up motion” was in
the form of an impermissible psychological and legal conclusion that a witness is not qualified to
make. The description does not establish the mental state of the charged offense—knowledge—
but rather the demeanor of Gyamfi. Describing what someone else knows in fact requires expert
witness qualifications. The distinction, although admittedly subtle, between lay and expert
witness testimony is that lay testimony results from a process of reasoning that is familiar in
everyday life, while expert testimony results from a process of reasoning that can be mastered
only by specialists in the field.
United States v. Kilpatrick
,
The description also does not qualify as a legal conclusion. A “giving up” description could have equally described a person in a police interrogation giving up in response to a host of interactions—i.e., giving up out of frustration of being interrogated although innocent of committing any crime. In other words, the officers’ testimony did not “flatly conclude[] that Mr. Gyamfi’s physical expression indicated a particular mental state,” as Gyamfi suggests. Appellant’s Br. 24.
D.
Third, Gyamfi argues that the district court abused its discretion in admitting the CBP officers’ testimony because it was improper character evidence under Rule 404. This argument also fails, mostly for reasons already stated.
Rule 404 states that “evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Without citing any case law that would even slightly support the notion that one’s “nervousness” can qualify as a character trait, Gyamfi fails to demonstrate that observing an ordinary manifestation of a human emotion that is reactionаry in nature could qualify as a character trait. As the government accurately points out, it did not offer the officers’ testimony of Gyamfi’s “nervousness” to prove that Gyamfi acted “in accordance with [his] character,” but to describe his appearance on January 8, 2013. Of course, had the officers testified that Gyamfi appeаred to be a “terrorist” or a “thief” or a “drug dealer,” then admission of such testimony would have been problematic. This was not the case here.
III.
For the foregoing reasons, we AFFIRM Gyamfi’s conviction.
Notes
[*] This decision was originally issued as an “unpublished decision” filed on October 19, 2015. The court has now designated the opinion as one recommended for full-text publication. The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by designation. 1