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United States v. Sutherland

United States District Court, E.D. Michigan, Southern Division

December 22, 2014



ROBERT H. CLELAND, District Judge.

During the course of this trial, Special Agent William Fleming has provided fact and opinion testimony pursuant to Rule 701. On October 22, 2014, defense counsel raised a foundational objection, based on their interpretation of United States v. Freeman, 730 F.3d 590 (6th Cir. 2013), to Special Agent William Fleming's testimony related to recordings of phone calls that were entered into evidence and played to the jury. (Dkt. #1073, Pg. ID 6034.) On October 27, 2014, defense counsel asserted a continuing objection to Agent Fleming's opinion testimony related to the recordings. (Dkt. #1075, Pg. ID 6673-74.) Defense counsel has raised additional Freeman -based objections to Agent Fleming's testimony throughout the trial. The court ruled on the objections and provided counsel with its reasoning for such rulings on the record. This memorandum opinion further explains the differences between improper testimony in Freeman and the testimony admitted in the instant case. Part I of this opinion analyzes Freeman and distinguishes Agent Fleming's testimony from the improper testimony in Freeman on the grounds that Agent Fleming's (1) was based on his personal knowledge and (2) did not infringe on the role of the jury by offering conclusive interpretations of the recordings. Part II reviews Agent Fleming's testimony related to audio recordings through November 17, 2014.

For the reasons stated on the record and discussed below, Agent Fleming's lay opinion testimony related to the recordings has been properly admitted. His testimony is distinguishable from the improper testimony in Freeman because: (1) Agent Fleming's testimony is based on his personal knowledge; (2) the court has repeatedly instructed the jury that it is the jury's responsibility alone to draw conclusions about the meaning and significance of the recordings; and (3) the jury was informed of the bases for Agent Fleming's testimony, thus making it possible for the jury to evaluate the reliability of his testimony.

I. The Dual Concerns of Freeman

A witness may provide opinion testimony under Rule 701, so long as the party seeking to admit the opinion testimony has established that the foundational requirements set forth in Rule 701 are met. Freeman, 730 F.3d at 595-96. Rule 701 provides:

If a witness is not testifying as an expert, 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. "If a witness's testimony fails to meet any one of the three foundational requirements, it is not admissible." Freeman, 730 F.3d at 596.

In Freeman, the Sixth Circuit held that a Federal Bureau of Investigation ("FBI") agent's lay opinion testimony interpreting the meaning of recorded phone calls was improper because (1) the prosecution did not establish a proper foundation for his testimony under Federal Rule of Evidence 701 and (2) his testimony infringed on the role of the jury by offering conclusive interpretations of the meaning of the recordings. Freeman, 730 F.3d at 596-99. In that case, a defendant convicted of conspiracy to use interstate commerce facilities in the commission of murder for hire, 18 U.S.C. ยง 1958, appealed from his conviction on the ground, inter alia, that the district court erred by permitting FBI Special Agent Peter Lucas to provide lay testimony interpreting the meaning of statements made during phone calls that were intercepted by the FBI and played to the jury. Id. at 592. Agent Lucas's "testimony ranged from voice and nickname identifications to substantive interpretations of the meaning of the various statements." Id. at 594.

The Sixth Circuit vacated the conviction after concluding that the prosecution did not establish that the agent had sufficient personal knowledge for his opinion testimony to meet the requirement set forth in Rule 701(a) because (1) the government conceded at oral argument that the agent "lacked the first-hand knowledge required to lay a sufficient foundation for his testimony under Rule 701(a);" (2) the agent "did not testify to being present for the surveillance, or even to observing any activity relevant to interpreting the calls;" and (3) the agent "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." Id. at 596-97. The jury was, therefore, "left to trust that he had some information... unknown to them... that made him better situated to interpret the words used in the calls than they were." Id. at 597.

The Freeman court also concluded that, by "dr[awing] conclusions from the phone calls the jury heard as well as from thousands of other phone calls and FBI evidence the jury had no access to..., [the agent] infringed upon the role of the jury to decide what to infer from the evidence, and instead told them what conclusions and inferences to draw." Freeman, 730 F.3d at 598. The court noted that Agent Lucas "effectively spoon-fed his interpretations of the phone calls and the government's theory of the case to the jury, interpreting even ordinary English language." Id. at 597.

Agent Fleming's testimony avoids both of the defects identified in Freeman. First, whereas in Freeman the government conceded that Agent Lucas lacked personal knowledge and the record was devoid of any " personal experience that led him to obtain his information, " the record in the instant case establishes that Agent Fleming was significantly involved with the surveillance that produced the recordings as well as the underlying activities discussed in the recordings. Agent Fleming testified that he first became aware of the Devils Diciples' activities in 2004 through his communications with confidential informants (Dkt. #1070, Pg. ID 5172); he has been serving as the case agent responsible for the overall investigation of the instant case against the Devils Diciples; and he participated in three controlled purchases of methamphetamine in this case (Dkt. #1073, Pg. ID 5968), surveillance activities (Dkt. #1076, Pg. ID 6878), and the execution of multiple search warrants of properties associated with the Devils Diciples. ( See Dkt. #1070, Pg. ID at 5187, 5194, 5198-99, 5249). Likewise, as discussed below, Agent Fleming regularly provided additional testimony reaffirming the bases for his opinion testimony.

Second, the majority of Agent Fleming's testimony does not implicate Freeman 's "conclusive interpretation" defect because it offers the jury context for the recordings to aid the jury in drawing their own conclusions. A minority of Agent Fleming's testimony concerns the meaning of particular phone calls. Under an overly literal reading of Freeman, some of this testimony may be improper to the extent that it interprets the meaning of "ordinary language." Freeman, 730 F.3d at 598 ("[A] case agent testifying as a lay witness may not explain to a jury what inferences to draw from recorded conversations involving ordinary language.") However, the "conclusive interpretation" defect is inextricably intertwined with the underlying foundational defect and flows directly from the fact that the Freeman jury was unable to evaluate the reliability of Agent Lucas's testimony because it had not been presented with the bases for his opinion. Ignorant of the bases for Agent Lucas's testimony, the jury could not use the testimony as an aid in drawing its own conclusions about the recordings, see Fed.R.Evid. 701(b); rather, it was left to choose only between adopting his interpretation or ignoring it. See id. ("[H]is testimony [was] no longer evidence but bec[ame] argument.") Furthermore, Agent Lucas "effectively told the jury that they were not as qualified as he to interpret the phone calls." Id. at 598-99 (quoting the agent's testimony that it is "possible" that the jury could reach a different conclusion if they listened to all of the phone calls, but warning that, unlike his interpretations, the jury's interpretations "would not be based on 15 years of experience in the FBI").

The minority of Agent Fleming's testimony that interprets ordinary language contained in recordings is distinguishable from the improper testimony in Freeman. Whereas the jury in Freeman had no means to evaluate the testifying agent's opinion, Agent Fleming informed the jury as to the bases for his understanding of the recordings, which therefore permitted the jury the opportunity to evaluate his testimony and draw their own conclusions. Furthermore, the court instructed the jury multiple times that Agent's Fleming's opinions about the meanings of the recordings are merely his opinions, and it is the jury's responsibility to draw its own conclusions about what the recordings mean.[*], [1] In sum, Agent Fleming's testimony related to the recorded conversations in the instant case is distinguishable from the testimony provided by the agent in Freeman because Agent Fleming's testimony was based on his personal knowledge and perceptions, as required under Rule 701(a) and (c); it was offered to help aid the jury in drawing its own conclusion about the meaning of the recordings, as required under Rule 701(b); the jury is capable of evaluating the reliability of his testimony and drawing its own conclusion based on the evidence because it has been informed about the bases for Agent Fleming's opinions; and the court has repeatedly instructed the jury that it is the jury's role to draw conclusions about the meaning of the recordings.

II. Agent Fleming's Testimony

This Part discusses defense counsel's Freeman objections as they relate to Agent Fleming's specific testimony. Section II.A recounts Agent Fleming's introductory foundational testimony; Section II.B addresses his testimony prior to defense counsel's Freeman objection; Section II.C reviews Agent Fleming's various testimony that provides helpful context to the recordings; and Section II.D covers his opinion testimony interpreting particular statements and conversations.

A. Introductory Foundational Testimony

During Agent Fleming's direct examination, the government moved to admit, "based upon the understanding of all parties, " audio recordings (Exhibits R-1 through R-12), a summary exhibit of the audio recordings (Exhibit R), wiretapped calls (Exhibits T-1 through T-333), a summary exhibit of the wiretapped calls (Exhibit T), and transcripts of the audio recordings and wiretapped calls (Exhibits R-1A through R-12A and T-1A through T-333A).[2] (Dkt. #1073, Pg. ID 5970-75.) The government then solicited testimony from Agent Fleming about his personal knowledge of these recordings. Agent Fleming stated that he listened to all of the intercepted calls that were relevant to this case, (Dkt. #1070, Pg. ID 5271) and he described the process he used to monitor one of the wiretapped phones:

The phone is monitored by an agent. It comes up on a computer screen when either there's an incoming call or Mr. Darrah makes an outgoing call. It tells you what phone number he's, he's calling or is calling him. You then can listen for an initial two-minute period. If after two minutes, you realize that the call is not related to criminal activity, we hit a button that minimizes or turns off the recording that we then can listen to.
If, after two minutes, we make a determination that the call is criminal in nature, we can continue to listen for the call - to the call. But if, later on in that call, it becomes non-criminal, we then minimize it again, which does not allow us to hear what's going on.

(Dkt. #1070, Pg. ID 5271-72.)[3]

Agent Fleming also provided testimony about the nature of the non-wiretap audio recordings. He stated that Exhibit R-2 is a recording made during a controlled buy on August 4, 2007 (Dkt. #1073, Pg. ID 5978), Exhibit R-3 is a telephone conversation that occurred while agents were present with a cooperating call participant ( Id. at 5980), and Exhibit R-5 was a recording of a Devils Diciples "church meeting" on October 3, 2007. ( Id. at 5982.) He further provided an in-depth description of his personal involvement in obtaining and surveying Exhibit R-5.[4] Throughout the course of trial, the government has solicited additional foundational testimony to demonstrate Agent Fleming's personal knowledge when necessary. This additional foundational testimony is discussed below.

B. Testimony Prior to Defense Counsel's Freeman Objection

i. Testimony about Exhibit R-5 and the False Tailpipe

After testifying to his personal knowledge of the recordings and wiretapped phone calls, Agent Fleming testified about the content of some of the recordings. First, he testified that he selected two portions of Exhibit R-5 for trial: a "portion where Mr. Rich and Mr. Pizzuti discuss the future purchase of methamphetamine" and "a portion of the meeting with Mr. Smith, Mr. Darrah and other members of the Devils Diciples." (Dkt. #1073, Pg. ID 5984-85.) Regarding the portion involving Vern Rich, Agent Fleming stated: "Well, there's two main things, both associated with the purchase of methamphetamine. First, Mr. Pizzuti is trying to determine if Mr. Rich is ready, meaning does he have methamphetamine to purchase. Mr. Rich says that he's low, but that he had just given $60, 000 to someone to re-up, which means to replenish his supply of methamphetamine." ( Id. at 5985.) The government then inquired about an exhaust ...

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