798 F.3d 365 (6th Cir. 2015), 13-2500, United States v. Kilpatrick

Docket Nº:13-2500, 14-1120
Citation:798 F.3d 365
Opinion Judge:SILER, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KWAME M. KILPATRICK (13-2500); BOBBY W. FERGUSON (14-1120), Defendants-Appellants
Attorney:ARGUED: Harold Gurewitz, GUREWITZ & RABEN, PLC, Detroit, Michigan, for Appellant in 13-2500. Susan W. Van Dusen, Coral Gables, Florida, for Appellant in 14-1120. Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Harold Gurewitz, GUREWITZ & RABEN, PLC, Detro...
Judge Panel:Before: SILER, GRIFFIN, and WHITE, Circuit Judges.
Case Date:August 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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798 F.3d 365 (6th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

KWAME M. KILPATRICK (13-2500); BOBBY W. FERGUSON (14-1120), Defendants-Appellants

Nos. 13-2500, 14-1120

United States Court of Appeals, Sixth Circuit

August 14, 2015

Argued: January 13, 2015.

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Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:10-cr-20403--Nancy G. Edmunds, District Judge.

ARGUED: Harold Gurewitz, GUREWITZ & RABEN, PLC, Detroit, Michigan, for Appellant in 13-2500.

Susan W. Van Dusen, Coral Gables, Florida, for Appellant in 14-1120.

Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

ON BRIEF: Harold Gurewitz, GUREWITZ & RABEN, PLC, Detroit, Michigan, for Appellant in 13-2500.

Susan W. Van Dusen, Coral Gables, Florida, Gerald K. Evelyn, Detroit, Michigan, for Appellant in 14-1120.

Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: SILER, GRIFFIN, and WHITE, Circuit Judges.

OPINION

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SILER, Circuit Judge.

Codefendants Kwame Kilpatrick, former mayor of Detroit, and Bobby Ferguson, a Detroit contractor, challenge their jury convictions for bribery, extortion, mail and wire fraud, RICO conspiracy, and tax evasion. The issues are whether: (1) Kilpatrick was denied his constitutional right to conflict-free counsel because his two lead attorneys had recently become " of counsel" to a firm that was suing Kilpatrick for alleged conduct related to his criminal charges; (2) the extensive testimony by two case agents violated the Rules of Evidence; (3) the district court erred when it allowed witnesses to report what other people had told them about Kilpatrick and Ferguson as evidence that the witnesses feared the defendants; and (4) the district court erred by ordering Kilpatrick to pay restitution to the Detroit Water & Sewerage Department and to the IRS. For the reasons that follow, we AFFIRM the convictions, but VACATE and REMAND the restitution order.

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I. INTRODUCTION

The trial of Kilpatrick, Ferguson, and Bernard Kilpatrick (Kilpatrick's father, who is not a party in this appeal) transpired from September 2012 to March 2013. The six-month proceeding included almost 100 government witnesses and over 700 exhibits, and encompassed 10,000 pages of transcripts. The jury found Kilpatrick guilty of 24 of the 30 counts against him. These include one count of RICO conspiracy, 18 U.S.C. § 1962(d); four counts of extortion, 18 U.S.C. § 1951; one count of attempted extortion, 18 U.S.C. § 1951; one count of bribery, 18U.S.C. § 666(a); eleven counts of mail and wire fraud, 18 U.S.C. § § 1341, 1343; five counts of subscribing a false tax return, 26 U.S.C. § 7206(1); and one count of income tax evasion, 26 U.S.C. § 7201. The jury found Ferguson guilty of nine out of eleven counts: one count of RICO conspiracy, 18 U.S.C. § 1962(d); six counts of extortion, 18 U.S.C. § 1951; one count of attempted extortion, 18 U.S.C. § 1951; and one count of bribery, 18 U.S.C. § 666(a).

Kilpatrick and Ferguson then moved for a new trial. Among their grounds for relief were the first three arguments they now make to this court. The district court denied the motion. The issues in this appeal do not require a detailed explanation of the charges and the evidence. Suffice it to say that the government's main theory was that Kilpatrick and Ferguson conspired to extort money from other Detroit-area contractors by pressuring them to include Ferguson's companies in their city contracts--even when Ferguson's companies were not the most qualified candidates and even when Ferguson's companies did no work.

II. KILPATRICK'S ATTORNEYS

We turn first to Kilpatrick's claim that he was denied his constitutional right to conflict-free counsel. This claim concerns Kilpatrick's lead trial attorneys, James Thomas and Michael Naughton. Kilpatrick initially hired Thomas in 2008 to represent him in other matters. After Kilpatrick was indicted in this case, the district court--upon Kilpatrick's request--appointed Thomas and Naughton to serve as his counsel under the Criminal Justice Act.

A. FACTS

From 2005 to 2010, the year of Kilpatrick's indictment, Thomas represented Gaspar Fiore. Fiore eventually became a victim-witness in the government's investigation of Kilpatrick and Ferguson.

In July 2011, the Macomb Interceptor Drain Drainage District filed a civil complaint against Kilpatrick as lead defendant in a case involving the Macomb Drain project--one of the city sewer department projects that was an issue in the criminal case. The plaintiff's counsel in that lawsuit was the firm of O'Reilly Rancilio P.C. (" the O'Reilly Firm" ). Although Kilpatrick did not retain Thomas and Naughton to represent him in the civil case, Thomas and Naughton filed Kilpatrick's answer to prevent default. In April 2012, Thomas and Naughton became " of counsel" attorneys with the O'Reilly Firm. Accordingly, they obtained an order from the court in the civil suit allowing them to withdraw from representing Kilpatrick. Naughton certified that he served Kilpatrick with a copy of the order and indicated Kilpatrick acknowledged receipt of the order. In August 2012, shortly before the criminal trial, Kilpatrick told the district court that he wanted Thomas to withdraw on account of Thomas's previous representation of Fiore and a breakdown in the attorney-client relationship.

The court asked for briefing on all possible conflicts and held a hearing on August

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14, 2012 (an earlier conflict hearing on August 7 did not concern the O'Reilly Firm issue). Thomas told the court he could not ethically cross-examine his former client Fiore. He also explained that he and Naughton maintained a separate office from the O'Reilly Firm, had separate electronic filings systems, and had no financial ties to the Macomb Drain litigation.

To alleviate the apparent conflict, the government agreed to withdraw the charges that concerned Fiore. Additionally, the court appointed a separate attorney to cross-examine the witnesses related to the Macomb Drain project.1 In light of these safeguards and the uncontested evidence that Thomas and Naughton had separate offices and separate physical and electronic filing systems from the O'Reilly Firm and no financial relationship to the Macomb Drain litigation, the district court declined to disqualify Kilpatrick's attorneys.

The district court also considered Kilpatrick's claim that he had lost trust in his attorneys and could no longer work with them. The court denied Kilpatrick's motion to replace his attorneys, finding that it was merely a tactic to delay the trial. Kilpatrick does not appeal this aspect of the decision.

The criminal trial began on September 6, 2012. On October 31, 2012, the court in the civil case dismissed all claims against Kilpatrick. On February 11, 2013, the day closing arguments began in the criminal trial, the court in the civil case denied the plaintiff's motion for reconsideration.

On appeal, Kilpatrick points out that the civil suit incorporated allegations from Kilpatrick's indictment, and that the civil plaintiff attempted to amend its complaint during the criminal trial, drawing on evidence that was being developed during that trial. Thomas and Naughton, Kilpatrick explains, " 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."

B. ANALYSIS

Kilpatrick contends that (1) Thomas and Naughton had an actual conflict of interest due to the O'Reilly Firm's simultaneous representation of the plaintiff in the civil suit, which he argues deprived him of the effective assistance of counsel; and (2) the district court failed to thoroughly investigate and resolve the attorneys' conflicts.

Whether counsel rendered ineffective assistance is a mixed question of law and fact that we review de novo. McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). We review the district court's underlying factual findings for clear error. Id.

The Sixth Amendment's right to counsel includes a " correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). For most ineffective-assistance-of-counsel claims, the defendant must prove both (1) deficient performance and (2) prejudice to warrant reversal of a conviction. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But conflict-of-interest claims warrant a modified Strickland analysis. Moore v. Mitchell, 708 F.3d 760, 777 (6th Cir.), cert. denied sub nom. Moore v. Robinson, 134 S.Ct. 693, 187 L.Ed.2d 559 (2013). When assessing alleged conflicts of interest, courts presume prejudice exists if the defendant demonstrates that

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counsel " actively represented conflicting interests" and that this " actual conflict of interest adversely affected" the lawyer's performance. Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (quoting Strickland, 466 U.S. at 692).

To prove actual conflict, a defendant must " point to specific instances in the record" and " make a factual showing of inconsistent interests." Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987) (quoting United States v. Mers, 701 F.2d 1321, 1328 (11th Cir. 1983)). The defendant must show that the lawyer " made a choice...

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