United States v. Freeman

• Decision Date: 13 September 2013
• Docket Number: No. 11–1798.,11–1798.
• Citation: 730 F.3d 590
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Marcus Lamont FREEMAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

730 F.3d 590

UNITED STATES of America, Plaintiff–Appellee,

v.Marcus Lamont FREEMAN, Defendant–Appellant.

No. 11–1798.

United States Court of Appeals, Sixth Circuit.

Argued: June 13, 2013.

Decided and Filed: Sept. 13, 2013.

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.

Before: COLE and COOK, Circuit Judges; KATZ, District Judge. ^*

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 direct 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. Day'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 November 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 to 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 Street 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 had 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 over, 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 say 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 recorded 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 against 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 various 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 the 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...