Case Information
*1 Before: COLE and COOK, Circuit Judges; KATZ, District Judge. [*] _________________
COUNSEL ARGUED: Craig A. Daly, Detroit, Michigan, for Appellant. Patricia Gaedeke, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Craig A. Daly, Detroit, Michigan, for Appellant. Elizabeth A. Stafford, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
COLE, Circuit Judge. Defendant-Appellant Marcus Freeman was convicted by a jury in the United States District Court for the Eastern District of Michigan of conspiracy to use interstate commerce facilities in the commission of murder for hire, 18 U.S.C. § 1958. He received a sentence of life without parole. Freeman now brings a dirеct appeal from that conviction, arguing that (1) the district court erred by permitting the Federal Bureau of Investigation agent in charge of the investigation to give lay testimony under Federal Rule of Evidence 701, (2) the district court erred with respect to various other evidentiary rulings, (3) the district court erred by declining to amend the jury instructions according to Freeman’s requests, and (4) there was insufficient evidence to sustain Freeman’s conviction. For the following reasons, we vacate Freeman’s conviction and remand for a new trial.
I.
In November 2005, as part of a separate drug investigation, the FBI began wire intercepts of cellular telephones of several individuals pursuant to Title III of the Wiretap Act, 18 U.S.C. §§ 2510–22, including a phone used by Roy West, Freeman’s co-defendant in this case. West was eventually convicted of paying Freeman to murder Leonard Day.
The calls revealed that Day, who was wanted for murder in Detroit, had stolen about $100,000 in cash, $250,000 in jewelry, a gun, and car keys from West while hiding out at West’s Ohio home. Immediately after the theft, West began to search for Day. Dаy’s cousin, whose phone was also wiretapped, suggested to West that Day may have gone to the Greyhound bus station near West’s home in Akron, Ohio, in order to return to Detroit. West offered to pay $1,000 to whoever went to the bus station to find Day. He suggested that that person take a “heater” because there was “nothing to talk about.” The FBI, fearing that Day’s life was in danger based on the phone intercepts, similarly searched for Day at the bus station. No one, however, located Day.
West continued to look for Day. The day after the theft, West learned from another of Day’s cousins that Day had returned to Detroit. West and other co-defendants gathered bulletproof vests and firearms in preparation for a manhunt of Day. The FBI recorded West telling one co-defendant, Christopher Scott, to “[g]et them pipes ready” and “grab up a whole bunch more things.” The FBI believed these were references to firearms.
Once in Detroit, West threatened Day’s family, Day’s girlfriend, Kanisha Crawford, and Crawford’s family members in an attempt to locate Day. On the evening of Nоvember 11, 2005, West and his associates spotted Crawford outside a Days Inn in Detroit where Crawford and Day were staying. They tried to approach Crawford, but she escaped into a nearby CVS, and the police were called. West and his associates were arrested, but no charges were filed.
West’s search for Day continued with the assistance of Scott and Freeman. Intercepted phone calls revealed that Freeman, who already had a personal relationship with Day’s cousins, was “spying” on Day’s family in order tо determine Day’s location. At one point, West paid members of Day’s family to recover some of his jewelry. Freeman refused to convey this money to the family himself, afraid that the Day family would recognize his connection to West: “But how you gonna get it through . . . then you gonna blow our cover?”
Freeman began to close in on Day. In one call with West, Freeman commented, “This shit should be any day now though fam for real. So I’m on it for sure ’cause I need that.” On December 17, 2005, Freeman called West asking for a cross street for a Kilbourne Strеet address. West did not understand Freeman’s question and asked for clarification. Freeman responded, “Dude just called it in, baby, sayin’, shit, shit that the truck be in the driveway at night . . . . All the belongings be right in the drawer.” Special Agent Peter Lucas, the FBI agent in charge of the investigation, believed that “the truck” was a reference to Day’s truck and that Freeman had located Day.
On December 20, 2005, Day was shot while leaving a house at 14759 Kilbourne Street. The FBI checked phone logs for the phone Freeman had been using. For most of the day the phone hаd made calls from the cellular tower nearest the house where Day was killed. Five minutes after the last phone call, residents started calling 911 to report a shooting at the Kilbourne Street address. Three minutes after the first 911 call, Freeman and Scott called West:
WEST: What up?
FREEMAN: We get rich, Ohio. We get rich, Ohio. We get rich, Ohio. WEST: Who this?
FREEMAN: This is Wood . . .
SCOTT: And Ceaze . . . .
FREEMAN: We be down there to holla’ at you in a couple hours Fam. WEST: What’s good?
FREEMAN: Everything good, man. Except for, you know . . . you know what I’m talkin’ about . . . just that one little thing. We ain’t get the bonus, dog. But, you know what I’m sayin’, the situation is over with. WEST: You bullshittin’.
FREEMAN: Fam, it’s ovеr, we get rich baby, you know what I’m talkin’ about, but man, we sorry about that other bonus, baby. But you know, I mean . . . You know.
SCOTT: Fam-O, see you in a minute, man.
WEST: All right.
At trial, Agent Lucas interpreted the phrase “We get rich, Ohio” to mean that Freeman was looking forward to being paid for Day’s murder. When asked what “situation” Freeman was referring to in this phone call, Agent Lucas said, “The situation discussed was regarding Leonard Day and his having stolen jewelry from Roy West, Roy West having put a hit on Leonard Day and Leonard Day ultimately being killed.”
After hanging up, West called another co-defendant and stated that “[t]hey sаy dude up out of here . . . motha’ fuckers just called me.” Minutes after that conversation West told his brother that “somebody done murdered that nigger Buck man.” West made other similar phone calls that day. When speaking with Day’s family members, however, he did not mention the murder, instead behaving as if nothing eventful had happened.
According to the prosecution’s theory, West, Freeman, and Scott then met to exchange payment for the murder. By the early morning hours of December 21, 2005, the phone used by Freeman was no longer in Detroit but was instead in Akron, Ohio, using the same cell phone tower as West’s phone. Freeman called West and proposed that they meet at West’s house in Akron. Later that day, Scott called West, asked “Did you count that?” and said “the count” was “fifty-six twenty.” During trial Agent Lucas interpreted this to mean $5,620, in reference to money paid for killing Day, although before the grand jury he was less sure and testified “[I]t’s a multiple of 10. Either 56, 5,620, 56,000.”
Some days later Freeman was jailed after an arrest for an unrelated offense. Phone calls between Freeman and his girlfriend were recordеd while he was incarcerated. On one call he told her, “Do not fuck that chip up. Dude name in the phone.” He also told her that “BUC” “still owe me some cheese.” Agent Lucas testified that “BUC” was a reference to West and that Freeman was telling his girlfriend that West still owed him money.
After a jury trial, Freeman was convicted under 18 U.S.C. § 1958 for conspiracy to use interstate commerce facilities in the commission of murder for hire. On June 20, 2011, the district court imposed a life sentence. Freeman brought a timely appeal.
II.
Freeman argues that his conviction should be vacated on four separate grounds: (1) the district court improperly permitted Agent Lucas to give lay testimony under Federal Rule of Evidence 701, (2) the district court erred with respect to various other evidentiary rulings, (3) the district court erred by not amending the jury instructions, and (4) there was insufficient evidence to sustain Freeman’s conviction. Because we conclude that the district court erred on the first ground, we grant relief on that basis and decline to reach the remaining issues.
The government’s primary evidence аgainst Freeman consisted of 23,000 phone conversations between Freeman, West, Scott, and other co-defendants. Seventy-seven of these calls were admitted as exhibits at trial, and portions of them were played for the jury. Agent Lucas was called to testify regarding his personal impressions of the recorded conversations. Agent Lucas thus interpreted the conversations as they were played. His testimony ranged from voice and nickname identifications to substantive interpretations of the meaning of the variоus statements. Defense counsel objected near the beginning of this testimony: “I think this is outside of the scope of both the notice we received regarding this witness’s expertise and his expertise. Both.” While Agent Lucas had been qualified as an expert to testify to the meaning of specific code words and drug slang, both parties recognized that his testimony had moved outside the scope of his expert qualification. The prosecution responded: “Your honor, this is not expert testimony. This is based upon his personal knowledge of thе investigation.” The objection was overruled, and Agent Lucas continued to testify as a lay witness under Rule 701. The defense was granted a standing objection to all of Agent Lucas’s lay interpretations regarding the phone calls.
Throughout the recordings, Agent Lucas interpreted conversations between Freeman and his co-defendants to broadly illustrate the prosecution’s theory of the case for the jury. At the end of one phone call between West and Freeman, for example, in which they discuss “the word on dude,” Freeman sаys, “I told you I was chillin’ over dude house.” Freeman additionally says, presumably referring to Day’s family, “[T]hey was talkin’ about the dude, so he definitely phonin’ in.” Freeman ends the call by stating, “This shit should be any day now though fam for real. So I’m on it for sure ‘cause I need that.” Agent Lucas testified to the meaning of this call, including Freeman’s final statement. Agent Lucas told the jury, “I believe he is referring to the fact that he needs the payment he expects from Roy West if he’s successful in locating Leonard Day . . . for the purpose of recovering the jewelry and killing him.”
In anоther call, which occurred three minutes after the first 911 call, immediately after Day’s death, Freeman told West that “the situation is over.” Agent Lucas was asked about the meaning of “the situation.” He testified, “The situation discussed was regarding Leonard Day and his having stolen jewelry from Roy West, Roy West having put a hit on Leonard Day and Leonard Day ultimately being killed.” Similar “interpretations” occurred throughout Agent Lucas’s testimony.
On appeal, Freeman argues that Agent Lucas’s testimony was improper lay
testimony under Federal Rule of Evidence 701. “We review for abuse of discretion a
district court’s evidentiary rulings, including rulings on witness testimony under Rule[]
701 . . . .”
United States v. White
,
A.
A witness may testify based on opinion, as opposed to testifying to facts of which
he has direct knowledge, under two circumstances: as a lay person under Rule 701 or as
an expert under Rule 702. “Such lay opinion testimony is permitted under Rule 701
because it has the effect of describing something that the jurors could not otherwise
experience for themselves by drawing upon the witness’s sensory and experiential
observations that were made as a first-hand witness to a particular event.”
United States
v. Jayyousi
,
If a witness is not testifying as an еxpert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s 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.
Fed. R. Evid. 701;
see also id
. advisory committee’s note. The burden is on the
proponent to provide adequate foundation for the testimony.
United States v. Grinage
,
Several оf our sister circuits have held testimony inadmissible under
circumstances similar to those presented here,
see United States v. Hampton
, 718 F.3d
978 (D.C. Cir. 2013);
United States v. Johnson
,
We conclude that here the prosecution did not establish a proper foundation for
Agent Lucas’s testimony under Rule 701. As several circuits have recognized, there is
a risk when an agent “provides interpretations of recorded conversations based on his
knоwledge of the entire investigation . . . that he [is] testifying based upon information
not before the jury, including hearsay, or at the least, that the jury [c]ould think he ha[s]
knowledge beyond what [is] before them . . . .”
Hampton
,
Over the course of his testimony, Agent Lucas repeatedly substantiated his
responses and inferences with generic information and references to the investigation as
a whole. For example, he made statements such as “We learned over our wiretaps” and
“We were able to determine that from some the intercepted calls . . . .” 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.
While the jury, left in the dark regarding the source of Agent Lucas’s information, likely
gave him the benefit of the doubt in this situation, “the fair inference is that he was
expressing an opinion informed by all the evidence gleaned by various agents in the
course of the investigation and not limiting himself to his own personal perceptions.”
Garcia
,
Although Agent Lucas did not testify to being present for the surveillance, or
even to observing any activity relevant to interpreting the calls, the jury was left to trust
that he had some information—information unknown to them—that made him better
situated to interpret the words used in the calls than they were.
See Johnson
, 617 F.3d
at 293 (“Agent Smith did not testify to directly observing the surveillance” and thus was
not qualified to testify under Rule 701);
see also Jayyousi
,
Furthermore, a lay opinion should not waste time, “merely tell the jury what
result to reach,” or be “phrased in terms of inadequately explored legal criteria.”
McGowan v. Cooper Indus., Inc.
,
Take, for example, Agent Lucas’s testimony as to the phone call between Freeman, Scott, and West three minutes after the first 911 call after Day had been shot:
WEST: What’s good?
FREEMAN: Everything good, man. Except for, you know . . . you know what I’m talkin’ about . . . just that one little thing. We ain’t get the bonus, dog. But, you know what I’m sayin’, the situation is over with.
When asked what “situation” Freeman had referred to, Agent Lucas testified, “The
situation discussed was regarding Leonard Day and his having stolen jewelry from Roy
West, Roy West having put a hit on Leonard Day and Leonard Day ultimately being
killed.” Somehow, when passed through Agent Lucas’s interpretive lens, this cryptic
exchange becomes crystal clear, and his explanation fits perfectly with the prosecution’s
view of the case.
See Hampton
,
The government argues that it was helpful for the jury to hear the testimony of
an individual who had the opportunity to listen to all 23,000 phone calls since it would
have been impractical for the jury to listen to all of the calls themselves. Were this
argument “to be accepted, there would be no need for the trial jury to review personally
any evidence at all. The jurors could be ‘helped’ by a summary witness for the
Government, who could not only tell them what was in the evidence but tell them what
inferences to draw from it.”
Grinage
,
We can distinguish this casе from out-of-circuit cases cited by the government. In those cases, the phone calls included cryptic language, and the testifier explained what personal knowledge he used in interpreting that language. For example, in the Seventh Circuit case, an agent testified based on thousands of calls that coconspirators devised code as they went along, using words with different meanings at different times. Rollins , 544 F.3d at 832. That agent opined about the meaning of otherwise nonsensical conversations involving, for example, “having drinks,” the height of a “singer” in a “band,” and “big shoes and little shoes.” Id. at 831. Here, however, Agent Lucas testified about not only code words but also common words used in common ways.
Moreover, we emphasize our concern that the jury may have been unduly
persuaded by Agent Lucas’s position as an FBI agent. An agent qualified as an expert
may interpret coded drug language, as Agent Lucas did. And a lay witness who has
personal knowledge of a particular drug or crime conspiracy may similarly testify to the
meaning of coded language within his knowledge. But a case agent testifying as a lay
witness may not explain to a jury what inferences to draw from recorded conversations
involving ordinary language.
Hampton
,
Q: You’re just an everyday mope like everybody else, right?
A: In some respects, yes. But an everyday mope who has listened to approximately 23,000 Title III calls in this case.
Q: Right. But the Jury could listen to 23,000 phone calls . . . аnd reach a different personal conclusion, correct?
A: That’s possible and it would not be based on 15 years of experience in the FBI.
Comments such as these “can convey the impression that evidence not presented to the
jury, but known to the [prosecution], supports the charges against the defendant and thus
jeopardize the defendant’s right to be tired solely on the basis of the evidence presented
to the jury.”
Id.
at 983 (quoting
United States v. Young
,
B.
Our conclusion that the district court abused its discretion by allowing Agent
Lucas to testify as a lay witness does not automatically lead to reversal. “Even when the
district court has abused its discretion in admitting evidence, we do not reverse a
conviction if the error is harmless, meaning that it appears beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.”
Lopez-Medina
,
The government cursorily argues that, even if the district сourt abused its
discretion by admitting Agent Lucas’s testimony under Rule 701, the error was harmless
because Agent Lucas could have been qualified as an expert under Rule 702 for the
entire scope of his testimony.
[1]
The government acknowledges that Agent Lucas’s
testimony exceeded the scope of its expert notice,
see
Fed. R. Crim. P. 16, but argues
that “[c]ourts have found harmless error when a witness was unquestionably qualified
to render expert testimony, even in the absence of . . . expert notices.”
See United States
v. Oriedo
,
An expert may testify under Rule 702 if his
(a) scientific, technical, or other specialized knowledge will help the trier оf fact to understand the evidence or to determine a fact in issue; (b) . . . testimony is based on sufficient facts or data; (c) . . . testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. A district court must apply Rule 702 to determine whether or not to qualify a witness as an expert. See Kumho Tire Co. v. Carmichael ,526 U.S. 137 , 153 (1999). Even if the government had produced an expert notice, it is far from obvious that Agent Lucas could have met the Rule 702 expert testimony requirements.
The requirement that an opinion be “helpful to the jury” is the same under Rule
702(a) as under Rule 701(b).
See McGowan
,
Additionally, although Agent Lucas explicitly referred to his expertise and
credentials, giving himself an aura of authority on the stand, it is not clear what expert
methodology he relied on to form his opinions (outside of his expertise on street slang
and drug terms, which had already been granted). Testimony under Rule 702 must be
“the product of reliable principles and methods . . . reliably applied . . . to the facts of the
case.” Fed. R. Evid. 702. Here, Agent Lucas “provided virtually no methodology or
guiding principles that would enable him to decode the wiretapped phone calls . . . .”
Johnson
,
We afford the district court “broad latitude” in executing its “gatekeeping” role
of certifying experts under Rule 702.
See Kumho Tire Co.
,
Because it does not “appear[] beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained,”
Lopez-Medina
,
III.
For the foregoing reasons, we vacate the conviction and remand for a new trial.
Notes
[*] The Honorable David A. Katz, United States District Judge for the Northern District of Ohio, sitting by designation. 1
[1] The government does not argue that it was harmless error to admit Agent Lucas’s testimony on the grounds that there was sufficient evidence of guilt independent of Agent Lucas’s testimony.