United States v. Emmanuel Gyamfi

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0265p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│ No. 14-2247

v. │

>

│

EMMANUEL GYAMFI, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:13-cr-20055—George C. Steeh, District Judge.

Decided and Filed: October 19, 2015*

Before: ROGERS and DONALD, Circuit Judges; ROSE, District Judge.

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COUNSEL

ON BRIEF: William W. Swor, Detroit, Michigan, for Appellant. Stephanie M. Gorgon,

UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

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OPINION

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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

*

This decision was originally issued as an “unpublished decision” filed on October 19, 2015.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

No. 14-2247 United States v. Gyamfi Page 2

packed in the inner lining of Gyamfi’s suitcase, allegedly without his knowledge. Gyamfi was

indicted and charged with importing heroin, in violation of 21 U.S.C. § 952(a), and possession

with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At trial, four CBP officers

testified that Gyamfi appeared “nervous” while responding to questions about his travel plans

and the contents of his suitcase. The jury found Gyamfi guilty, and the district court sentenced

Gyamfi to seventy-two months in prison. On appeal, Gyamfi contends that the district court

improperly admitted conclusory testimony as to his mental state without laying a proper

foundation. We disagree and AFFIRM the conviction.

I.

On January 8, 2013, Gyamfi arrived at the Detroit Metropolitan Airport after a long trip

from Ghana. When he arrived at the primary 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 for 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 something 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 package containing 1.8 kilograms of heroin.

Officers Evers and Anaya escorted Gyamfi to a “search room” where Officer Anaya asked

No. 14-2247 United States v. Gyamfi Page 3

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 introduced 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 area, 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.

No. 14-2247 United States v. Gyamfi Page 4

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 disagree 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.

No. 14-2247 United States v. Gyamfi Page 5

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 Federal Rule of Evidence

701’s foundational requirements; (2) that the district court abused its discretion in admitting the

CBP officers’ testimony because it made legal conclusions; and (3) that the district court abused

its discretion in admitting the CBP officers’ testimony because it was irrelevant evidence of

Gyamfi’s character, which is impermissible under Rule 404.

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, 371 F.3d 865, 872-73 (6th Cir. 2004) (“If a party does not

clearly articulate any objection and the grounds upon which the objection is based, when given this

final opportunity to speak, then that party will have forfeited its opportunity to make any objections

not previously raised and thus will face plain error review on appeal.”) Although Gyamfi made three

objections, we need not determine whether Gyamfi’s counsel sufficiently preserved the arguments he

now makes on appeal, because Gyamfi’s arguments fail whether we apply plain error review or the

more demanding abuse of discretion scope of review.

B.

Gyamfi first argues that the government failed to establish a proper foundation under

Rule 701 to admit officers’ testimony “describing their perception of Gyamfi’s physical

demeanor.” Appellant’s Br. 4. Gyamfi contends that describing his appearance as “nervous”

was a psychological observation that caused the jury to adopt certain legal conclusions regarding

Gyamfi’s state of mind—namely, that he knew that his suitcase contained heroin. What was

missing, Gyamfi asserts, was the officers’ first-hand knowledge to support their “particular

interpretations” of his body language. Appellant’s Br. 19. To be clear, Gyamfi agrees that the

No. 14-2247 United States v. Gyamfi Page 6

trial court properly admitted the officers’ opinion testimony regarding their objective

observations of his physical appearance; rather Gyamfi’s arguments on appeal concern the

officers’ testimony that he was “nervous” during the interrogation. Appellant’s Reply Br. 6.

Rule 701 states that testimony in the form of a lay person’s opinion may be admitted only

if the testimony meets the following requirements: (a) it is rationally based on the witness’

perception; (b) it is helpful to clearly understanding the witness’ testimony or to determining a

fact in issue; and (c) it is not based on scientific, technical, or other specialized knowledge within

the scope of Rule 702. See id. advisory committee’s notes. The party offering the testimony

under Rule 701 must establish that all three requirements are satisfied. United States v.

Freeman, 730 F.3d 590, 595-96 (6th Cir. 2013) (vacating a conviction due to evidentiary errors

concerning a case agent’s testimony).

In Freeman, we concluded that, in order to satisfy Rule 701(b), an officer describing a

particular event must limit testimony to his or her “own sensory and experiential observations.”

730 F.3d at 595, 597. Speaking outside of these personal observations can potentially lead to

“merely tell[ing] the jury what result to reach” or, worse, spoon-feeding the jury the

government’s theory by using hearsay or otherwise unreliable conclusory statements. Id. at 597

(citation omitted); see also United States v. Albertelli, 687 F.3d 439, 447 (1st Cir. 2012)

(recognizing the possible dangers with testimony given by an agent, such as “effectively

smuggl[ing] in inadmissible evidence,” “drawing inferences that counsel could do but with . . .

the imprimatur of testifying as a law enforcement officer,” “usurp[ing] the jury’s function by

effectively testifying as to guilt,” and speculating). This is particularly unhelpful when a

witness, lay or expert, forms conclusions for a jury that the jurors were competent to reach on

their own. Freeman, 730 F.3d at 597.

We have also held, however, that testimony about the appearance of a person is “a typical

example of Rule 701 evidence.” United States v. Kaufman, 92 F. App’x 253, 256-57 (6th Cir.

2004) (affirming the admission of an officer’s testimony describing that the defendant “appeared

nervous during his interview”). Additionally, testimony related to a person’s manner of conduct

is categorized as a prototypical example of Rule 701 evidence. See Asplundh Mfg. Div. v.

Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995).

No. 14-2247 United States v. Gyamfi Page 7

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” of

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 phrase “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 Rule 701, because the testimony was based on a recorded

conversation in which the agent had no personal involvement or first-hand experience. Id. at

596-97.

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 any 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 person 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 “nervousness” was improper because the testimony prevented the jury from

reaching its own conclusion. Gyamfi contends that the officers’ testimony improperly raised the

No. 14-2247 United States v. Gyamfi Page 8

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 “happy,” 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 from 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

No. 14-2247 United States v. Gyamfi Page 9

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, 798 F.3d 365, 385 (6th Cir. 2015).

Because a gesture expressing “giving up” is a familiar expression in everyday life, the officers in

this case could have reasonably perceived the gesture or motion without having a mastery of a

particular specialty.

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 reactionary 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 appeared 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.