The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0443n.06
No. 15-2248
FILED
UNITED STATES COURT OF APPEALS Aug 02, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
IRVIN FLEMMING, )
)
OPINION
Defendant-Appellant. )
)
Before: GUY, BOGGS, and MOORE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. In September and October 2010, Irvin
Flemming (“Flemming”) and his wife, Jacqueline Flemming (“Jacqueline”), deposited $230,824
in cash into five different bank accounts. They obtained the money from Carlos Powell, who at
the time led a large narcotics-trafficking ring. All told, the Flemmings made thirty-six cash
deposits, none of which exceeded $10,000. In 2013, a grand jury indicted Flemming (but not
Jacqueline) for structuring financial transactions in violation of 31 U.S.C. § 5324, and aiding and
abetting the same. A jury convicted Flemming of the structuring count, and the district court
sentenced him to twenty-four months in prison.
Flemming represented himself at trial; he does so again before us, raising several
challenges on appeal. For the reasons set forth below, we AFFIRM Flemming’s conviction and
sentence.
No. 15-2248
United States v. Irvin Flemming
I. FACTS AND PROCEDURAL HISTORY
The facts of Flemming’s offense conduct are straightforward: in September and October
2010, Flemming made—or directed Jacqueline to make—thirty-six structured deposits of
Powell’s cash. The procedural history of Flemming’s case, however, is labyrinthine. Flemming
proceeded pro se in the district court and filed many motions before, during, and after his March
2015 trial. We provide an abbreviated account of Flemming’s case below.
A. Facts
This case arises out of one of the largest drug-trafficking prosecutions in the history of
Detroit, Michigan. Powell ran a narcotics conspiracy that was based in Detroit and spanned
several states.1 R. 541 (Trial Tr. (Donovan) at 30–42) (Page ID #5784–96). The conspiracy
proved very profitable: before federal authorities shut down his operation, Powell and his
associates made millions of dollars in cash. Id. at 37 (Page ID #5791).
Powell laundered much of that cash—this is how Flemming came to play a role in
Powell’s criminal enterprise. In 2010, Flemming’s business associate, Tom Conley, introduced
Flemming to Powell. R. 543 (Trial Tr. (Conley) at 26–27, 41) (Page ID #6172–73, 6187). At
the time, Flemming was buying and selling cars through Covenant Cars, a dealership that Conley
owned. Id. at 28–29 (Page ID #6174–75). Powell sought to purchase a new car, and Flemming
agreed to help him. Id. at 27 (Page ID #6173). Between August and October 2010, Flemming
sold to Powell—or purchased on Powell’s behalf—several vehicles and a condominium in
1
Powell is currently serving a life sentence of imprisonment; his appeal is pending before this court. See
Docket, United States v. Powell, No. 14-2506.
2
No. 15-2248
United States v. Irvin Flemming
Atlanta, Georgia. R. 542 (Trial Tr. (Andrade) at 121) (Page ID #6062); R. 543 (Trial Tr.
(Boudreau) at 119, 124, 129–31, 143) (Page ID #6265, 6270, 6275–77, 6289).
Powell gave Flemming cash to complete those transactions. R. 543 (Trial Tr. (Boudreau)
at 147–49) (Page ID #6293–95). Flemming deposited Powell’s cash into five different bank
accounts. R. 576-2 (Government’s Sentencing Mem., Ex. 1 (Tr. Ex. 86A)—Summary of Cash
Deposits (“Summary”)) (Page ID #7589). None of the accounts bore Flemming’s name: two
were in Jacqueline’s name, two were in Flemming’s mother’s name (Corinne Flemming), and
one was in the name of a business, iDimension, Inc. R. 542 (Trial Tr. (Bell) at 6, 16, 20) (Page
ID #5947, 5957, 5961). Before meeting Powell, Flemming had never made a deposit larger than
$1,000 into any of those accounts. R. 543 (Trial Tr. (Boudreau) at 122) (Page ID #6268).
Between September 16 and October 25, however, the Flemmings made thirty-six deposits
totaling $230,824. R. 576-2 (Summary) (Page ID #7589). All of those deposits exceeded
$1,000, but none exceeded $10,000. Id.
On November 17, 2010, law-enforcement authorities executed search warrants at several
locations associated with Powell’s enterprise. R. 541 (Trial Tr. (Donovan) at 32–34) (Page ID
#5786–88). They recovered millions of dollars in cash and large quantities of narcotics. Id. at
37 (Page ID #5791). At the time of the searches, Powell and Flemming were together in
Flemming’s Troy, Michigan condominium. R. 543 (Trial Tr. (Boudreau) at 150) (Page ID
#6296).
3
No. 15-2248
United States v. Irvin Flemming
B. Procedural History
On February 1, 2012, a grand jury in the Eastern District of Michigan indicted Powell
and eleven co-defendants—but not Flemming—for an array of narcotics-related offenses. R. 3
(Indictment) (Page ID #7). Flemming was later named as one of Powell’s co-defendants in a
superseding indictment dated January 15, 2013. R. 171 (Superseding Indictment) (Page ID
#1288). The superseding indictment charged Flemming with structuring financial transactions in
violation of 31 U.S.C. § 5324, and aiding and abetting the same. Id. at 22 (Page ID #1309).
Flemming was arraigned on January 31, and he entered a plea of not guilty. 1/31/13 Min.
Entry. On November 1, 2013, the district court allowed Flemming to represent himself pro se
and appointed standby counsel to assist him. R. 220 (11/01/13 Order) (Page ID #1703).
Between February and August 2014, Flemming filed seventeen pretrial motions. R. 406
(Order Adjourning Dates at 1) (Page ID #3024). We focus on one here: Flemming’s July 21,
2014 motion to dismiss the superseding indictment, in which Flemming argued that the
government’s delay in trying him violated the Speedy Trial Act of 1974. R. 394 (7/21/14 Mot. to
Dismiss) (Page ID #2945). Flemming amended that motion twice—once on July 28, and again
on August 8. R. 397 (Amendment to Mot. to Dismiss) (Page ID #2973); R. 405 (Adding
Additional Days and Notes to Mot. to Dismiss) (Page ID #3012).
On September 8, 2014, the district court denied Flemming’s seventeen motions—
including his Speedy Trial Act motion—in five separate written orders. R. 422 (Order Denying
Mots. for Discovery) (Page ID #3082); R. 423 (Order Denying Mot. for Bill of Particulars) (Page
4
No. 15-2248
United States v. Irvin Flemming
ID #3091); R. 424 (Order Denying Mots. to Dismiss or for Discovery for Selective or Vindictive
Prosecution) (Page ID #3098); R. 425 (Order Denying Mots. to Dismiss for Speedy Trial Act
Violations) (Page ID #3105); R. 426 (Order Denying Mot. for Withdrawal of Attorney) (Page ID
#3110).
In dismissing Flemming’s Speedy Trial Act motion, the district court explained that it
had entered several orders for excludable delay—on September 16, 2012; February 4, 2013; June
6, 2013; and August 8, 2014. R. 425 (Order Denying Mots. to Dismiss for Speedy Trial Act
Violations at 3–4 & n.1) (Page ID #3107–08). Moreover, Flemming had filed a litany of
motions that also tolled his speedy-trial clock. Id. at 4 (Page ID #3108). Those motions, along
with the district court’s excludable-delay orders, had the combined effect of freezing Flemming’s
speedy-trial clock from the day he was indicted through the day the district court issued its
September 8, 2014 order denying Flemming’s motion to dismiss. Id. at 5 (Page ID #3109).
On April 2, 2014, the district court severed Flemming’s case from the cases of the other
defendants named in the superseding indictment. R. 256 (Order of Severance at 3) (Page ID
#1990). Flemming’s trial began on March 17, 2015. R. 487 (1/21/15 Order at 2) (Page ID
#4113).
Pursuant to an immunity agreement with the government, Jacqueline testified against
Flemming. R. 543 (Trial Tr. (J. Flemming) at 51, 54) (Page ID #6197, 6200). Jacqueline
admitted that in the fall of 2010, she made large cash deposits with money that Flemming had
given her. Id. at 58–59 (Page ID #6204–05). At the time of the deposits, Jacqueline and
5
No. 15-2248
United States v. Irvin Flemming
Flemming were married and living together; they separated in November 2010, but did not
divorce. Id. at 51 (Page ID #6197).
During the course of her direct examination, Jacqueline recounted three statements that
she had made to Flemming during the course of their marriage:
1. Towards the beginning of her testimony, Jacqueline stated that she had worked as a
bank teller in the early 1990s. Id. at 56 (Page ID #6202). Jacqueline and the prosecutor
questioning her had the following exchange:
Q. Did you ever talk to Mr. Flemming in 2010 about the $10,000 limit for cash
deposits?
A. Yes.
Q. And what did you—what did you tell him?
A. I told him in—from what I can recall that there’s paperwork that needs to be
filled out if a deposit is made in cash of more than $10,000.
Q. And did you know that based on your prior work as a bank teller?
A. I did recall that from my training as a teller.
Id. at 57 (Page ID #6203). Flemming did not object to this testimony.
2. Jacqueline also recounted an incident that occurred in October 2010. As Jacqueline
exited a bank where she had deposited Flemming’s cash, a bank manager approached Jacqueline
and asked her if she was structuring deposits. Id. at 79–80 (Page ID #6225–26). At the time,
Jacqueline did not know what “structuring” was; the manager responded that Jacqueline should
have been “filling out . . . paperwork for deposits.” Id. at 80 (Page ID #6226). The manager did
6
No. 15-2248
United States v. Irvin Flemming
not tell Jacqueline whether there was a threshold for deposits that require paperwork; nor did the
manager tell Jacqueline whether it mattered if the deposits were in the form of cash or checks.
Id. He did, however, tell Jacqueline not to “do it again.” Id. Jacqueline testified that she told
Flemming about this conversation at the bank. Id. at 80–81 (Page ID #6226–27).
The district court interrupted Jacqueline, concerned that her testimony about a
conversation she had with Flemming might have violated a marital privilege. Id. at 81 (Page ID
#6227). The district court asked the government to move on, and reserved a ruling on the
marital-privilege issue. Id. at 83 (Page ID #6229).
3. Finally, the government asked Jacqueline about a 2007 Rolls Royce that Flemming
had sold to Powell, and Jacqueline testified that Flemming had told her that Powell was going to
buy the car. Id. at 85 (Page ID #6231). Flemming objected on privilege grounds; the district
court sustained his objection, and instructed the jury not to consider Jacqueline’s account of her
conversation with Flemming about the Rolls Royce. Id. at 86 (Page ID #6232).
After Jacqueline finished testifying, the district court excused the jury and asked
Jacqueline about the first of these statements—when Jacqueline told Flemming that cash deposits
in excess of $10,000 require paperwork. Id. at 88 (Page ID #6234). Jacqueline recalled that she
had this conversation with Flemming sometime before June 2010. Id. The court heard argument
about whether that conversation was protected by marital privilege and invited the parties to brief
the issue. Id. at 89–95 (Page ID #6235–41). Only the government filed a brief. R. 523 (Gov’t
Br. Regarding Spousal Privilege and Marital Commc’n) (Page ID #5666).
7
No. 15-2248
United States v. Irvin Flemming
After considering the government’s brief, the district court issued an oral ruling on
Jacqueline’s testimony. R. 545 (Trial Tr. at 16–18) (Page ID #6484–86). It held that
Jacqueline’s testimony concerning her conversation with Flemming about the $10,000 reporting
requirement did not violate spousal privilege. Id. at 16 (Page ID #6484). However, the court
found that that testimony violated a related privilege—the marital-communications privilege—
but that the government had a good-faith basis for eliciting it. Id. at 17–18 (Page ID #6485–86).
Later, the district court struck this testimony and gave the jury a curative instruction, telling them
to disregard Jacqueline’s testimony about that conversation with Flemming. Id. at 69 (Page ID
#6537).
On December 9, 2013, Flemming entered into a Kastigar immunity agreement with the
government. R. 525 (3/23/15 Gov’t Resp. at 3–4) (Page ID #5681–82). Pursuant to that
agreement, Flemming proffered information to the government, and the government reserved the
right to “make derivative use of” that information. Id. at 5 (Page ID #5683). As relevant here,
during his proffer session, Flemming discussed a 2007 Bentley that he had purchased on October
14, 2010. Id. at 4–5 (Page ID #5682–83).
At Flemming’s trial, the government introduced Kevin Boudreau, a private investigator
who helped the U.S. Attorney’s Office investigate Flemming. R. 543 (Trial Tr. (Boudreau) at
115) (Page ID #6261). Boudreau discussed the 2007 Bentley, and, without identifying
Flemming as the purchaser, testified that the car “was initially going to be purchased for an
8
No. 15-2248
United States v. Irvin Flemming
associate of Carlos Powell, guy by the name of LA.” Id. at 141, 143–44 (Page ID #6287, 6289–
90).
Although Flemming did not object to Boudreau’s testimony at trial, he later filed a
motion to dismiss his case, arguing that the government violated his Kastigar agreement by
eliciting testimony from Boudreau about the 2007 Bentley and “LA.” R. 524 (3/23/15 Def.’s
Mot. to Dismiss at 1–2) (Page ID #5677–78). The government filed a response in which it
explained that, through its own investigation, it learned about the Bentley and LA before
Flemming’s proffer session, and thus did not violate the Kastigar agreement when it introduced
testimony about the car and its intended recipient. R. 525 (3/23/15 Gov’t Resp. at 4–6) (Page ID
#5682–84). The district court sided with the government, calling the Kastigar issue “a red
herring” and ruling that the government had not violated Flemming’s Kastigar agreement. R.
545 (Trial Tr. at 13–14) (Page ID #6481–82).
Flemming’s jury found Flemming guilty of structuring, and did not consider the related
aiding-and-abetting count. R. 546 (Trial Tr. at 115) (Page ID #6798). Flemming filed motions
for acquittal and a new trial, which the district court denied. R. 583 (9/3/15 Order) (Page ID
#8991).
Before sentencing, Flemming filed a memorandum in which he argued that he was
entitled to receive a Base Offense Level of six under U.S.S.G. § 2S1.3(b)(3)’s “safe harbor
reduction.” R. 573 (Def. Flemming’s Sentencing Mem. at 19–21) (Page ID #7508–10). In
support of his request, Flemming claimed that he did not know that Powell was a criminal, and
9
No. 15-2248
United States v. Irvin Flemming
thus that he was unaware that the cash he received from Powell came from illicit activities. Id. at
20–21 (Page ID #7509–10).
The district court rejected Flemming’s safe-harbor argument, reasoning that “he could
have or should have known what . . . Powell was up to.” R. 598 (Sentencing Tr. at 12) (Page ID
#9489). Flemming faced a guidelines range of twenty-seven to thirty-three months in prison; the
district court varied downward, sentencing Flemming to twenty-four months. Id. at 48 (Page ID
#9525). Flemming timely appealed. R. 593 (Notice of Appeal) (Page ID #9410).
II. ANALYSIS
Flemming raises several challenges to his conviction and sentence, many of which have
multiple sub-arguments. Before addressing those challenges on the merits, we emphasize two
points. First, because Flemming is proceeding pro se, “we are mindful to construe his arguments
liberally.” El Bey v. Roop, 530 F.3d 407, 413 (6th Cir. 2008). Second, even though Flemming’s
arguments are entitled to that liberal construction, we still “deem[] waived” any arguments that
Flemming raises in cursory, perfunctory fashion. Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir.
2007) (citations omitted).
With these principles in mind, we read Flemming’s briefs as raising five distinct
arguments. All are unavailing. Flemming argues first that the district court violated his rights
under the Speedy Trial Act by continuing his trial until March 17, 2015. Second, he argues that
the district court erred when it allowed Jacqueline to testify about the conversation she had with
Flemming about the cash-transaction reporting requirement. Third, Flemming argues that
10
No. 15-2248
United States v. Irvin Flemming
Boudreau’s testimony about the Bentley and LA violated Flemming’s Kastigar agreement.
Fourth, Flemming contends that the government violated its discovery obligations under Brady v.
Maryland, 373 U.S. 83 (1963), by withholding records of Manheim Auto Auctions. Finally,
Flemming contends that he was entitled to receive U.S.S.G. § 2S1.3(b)(3)’s safe-harbor
reduction. Finding no error, we uphold Flemming’s conviction and sentence.
A. Speedy Trial Act
1. Standard of Review
Our review of Flemming’s Speedy Trial Act claim has three parts, and each has a
different standard of review. To begin, we review de novo “the district court’s interpretation of
the Speedy Trial Act.” United States v. Sobh, 571 F.3d 600, 602 (6th Cir. 2009). We review for
clear error the district court’s findings of fact regarding Flemming’s speedy-trial clock. Id.
Finally, we review for an abuse of discretion the district court’s determination that “the ends of
justice” merited continuances of Flemming’s trial date. United States v. Stewart, 628 F.3d 246,
253 (6th Cir. 2010) (quoting 18 U.S.C. § 3161(h)(7)(A)).
2. The district court did not violate Flemming’s Speedy Trial Act rights.
Flemming raises a number of speedy-trial claims, but the thrust of his argument is that he
was not tried within seventy days of his arraignment, as the Speedy Trial Act commands. This
argument lacks merit. The district court’s excludable-delay orders, and Flemming’s extensive
pretrial-motion practice, had the combined effect of freezing Flemming’s speedy-trial clock from
11
No. 15-2248
United States v. Irvin Flemming
the date of his arraignment through the first day of his trial. There was no Speedy Trial Act
violation here.
“The Speedy Trial Act . . . requires dismissal of a criminal case, with or without
prejudice, if the defendant is not tried seventy days after his indictment or his first court
appearance, whichever occurs later.” United States v. Gardner, 488 F.3d 700, 717 (6th Cir.
2007). Flemming’s “first court appearance”—his January 31, 2013 arraignment—postdates his
indictment, so we use that date as the start of his speedy-trial clock. Id.
We have established a two-step burden-shifting scheme to assess claims of prosecutorial
delay under the Speedy Trial Act. First, to “establish a prima facie case,” a defendant must
“show[] that he was not brought to trial within the seventy-day period.” Id.
Second, if “the defendant establishes that prima facie case, the government has the
burden of showing that, after taking into account time excludable from the seventy-day period,
the defendant was brought to trial during the statutorily mandated period.” Id. The Speedy Trial
Act’s seventy-day clock is subject to several exclusions and exceptions. See 18 U.S.C.
§ 3161(h). Three bear mention here:
1. First, in multi-defendant cases, we use one speedy-trial clock. United States v. Cope,
312 F.3d 757, 776 (6th Cir. 2002) (“Where . . . multiple defendants are charged together and no
severance has been granted, one speedy trial clock governs.”). This rule “applies equally to
earlier and later arraigned codefendants.” Sobh, 571 F.3d at 603.
12
No. 15-2248
United States v. Irvin Flemming
2. Second, a district court may exclude from the speedy-trial clock “[a]ny period of
delay resulting from a continuance granted by any judge . . . if the judge granted such
continuance on the basis of his findings that the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C.
§ 3161(h)(7)(A). “[T]he [district] court must set forth, either orally or in writing, its reasons for
finding that the ends of justice outweigh the best interests of the public and the defendant in a
speedy trial.” Gardner, 488 F.3d at 718 (citing United States v. Richmond, 735 F.3d 208, 214
(6th Cir. 1984)). Because we review for an abuse of discretion a district court’s determination
that a continuance is necessary to serve the ends of justice, a defendant challenging such a
determination “must show ‘actual prejudice.’” Stewart, 628 F.3d at 254 (quoting Gardner, 488
F.3d at 718).
3. Finally, “delay resulting from any pretrial motion, from the filing of the motion
through the conclusion of the hearing on, or other prompt disposition of, such motion,” does not
count towards the Speedy Trial Act’s seventy-day clock. 18 U.S.C. § 3161(h)(1)(D). This is
true “irrespective of whether [a pretrial motion] actually causes, or is expected to cause, delay in
starting a trial.” United States v. Tinklenberg, 563 U.S. 647, 650 (2011).
With these principles in mind, we hold that the government’s delay in bringing Flemming
to trial did not violate the Speedy Trial Act. Flemming has established a prima facie Speedy
Trial Act violation, because the time between the date of his arraignment (January 31, 2013) and
the first day of his trial (March 17, 2015) far exceeded seventy days. However, the government
13
No. 15-2248
United States v. Irvin Flemming
has rebutted Flemming’s prima facie case, because all of the days between Flemming’s
arraignment and his trial were excludable under the Speedy Trial Act. To explain why the
government has carried its burden, we start with the district court’s September 16, 2012
excludable-delay order, turn to the subsequent excludable-delay orders it entered, and finally
consider the tolling effect of Flemming’s extensive pretrial-motion practice:
1. September 16, 2012 excludable-delay order: Flemming’s speedy-trial clock was
already frozen when he was arraigned, because the district court entered its first excludable-
delay order on September 16, 2012—over four months before Flemming’s arraignment. R. 141
(9/16/12 Order at 1) (Page ID #1041). That order deemed excludable “the time period between
January 11, 2013 and June 17, 2013,” and included the district court’s finding that excluding this
period would serve “the ends of justice.” Id.
It is of no moment that Flemming had not yet been arraigned on September 16, 2012.
The January 15, 2013 superseding indictment named Flemming as a co-defendant of Powell and
others to whom the September 16 excludable-delay order applied. Thus, the district court’s
finding of excludable delay “applie[d] equally to” Flemming as a “later arraigned
codefendant[].” Sobh, 571 F.3d at 603. Accordingly, on the day Flemming first appeared before
the district court—January 31, 2013—his speedy-trial clock was already tolled until June 17,
2013.
2. Subsequent excludable-delay orders: After September 16, 2012, the district court
entered four excludable-delay orders that tolled Flemming’s speedy-trial clock through April 29,
14
No. 15-2248
United States v. Irvin Flemming
2014. First, on February 4, 2013—five days after Flemming’s arraignment—the district court
entered an excludable-delay order because “some of [Flemming’s] co-defendants were
unavailable.” R. 425 (9/8/14 Order at 3) (Page ID #3107). Three more excludable-delay orders
followed: (a) June 6, 2013 (which tolled Flemming’s speedy-trial clock through November 5,
2013); (b) October 11, 2013 (which tolled his speedy-trial clock through February 25, 2014); and
(c) January 20, 2014 (which tolled his speedy-trial clock through April 29, 2014). R. 203 (6/6/13
Order at 1) (Page ID #1652); R. 214 (10/11/13 Order at 1–2) (Page ID #1695–96); R. 230
(1/20/14 Order at 1–2) (Page ID #1739–40).
All four of these excludable-delay orders predated the district court’s April 2, 2014 order
severing Flemming from his then-co-defendants. R. 256 (Order of Severance) (Page ID #1988).
Because Flemming had not been severed before the district court entered its January 20, 2014
excludable-delay order, the time period that that order excluded—the period ending April 29,
2014—was also excluded from Flemming’s speedy-trial clock. 18 U.S.C. § 3161(h)(6); United
States v. Snelling, 961 F.2d 93, 95 (6th Cir. 1991).
One last point about these excludable-delay orders. Flemming argues that he “was never
consulted” regarding the June 6, October 11, and January 20 excludable-delay orders, and that as
a result they did not toll his speedy-trial clock. Appellant Br. at 28. However, a district court
does not need to obtain a defendant’s consent before it enters an ends-of-justice continuance.
See Sobh, 571 F.3d at 603. Just so here: the district court entered its June 6, October 11, and
January 20 excludable-delay orders in order to serve the ends of justice. R. 203 (6/6/13 Order at
15
No. 15-2248
United States v. Irvin Flemming
1) (Page ID #1652); R. 214 (10/11/13 Order at 1–2) (Page ID #1695–96); R. 230 (1/20/14 Order
at 1–2) (Page ID #1739–40). Thus, even though Flemming now claims that he did not consent to
those orders, they nonetheless tolled his speedy-trial clock until April 29, 2014.
3. Flemming’s pretrial motions: Finally, Flemming filed several pretrial motions that
had the cumulative effect of tolling his speedy-trial clock until the first day of his trial: March
17, 2015.
Flemming started on February 8, 2014 with a motion asking the district court to withdraw
his standby counsel. R. 232 (Mot. to Withdraw Standby Counsel) (Page ID #1779). Flemming’s
subsequent motions are too numerous to list here. Suffice it to say, on August 8, 2014 the
district court issued yet another ends-of-justice continuance order, finding that Flemming’s
“approximately seventeen pretrial motions” merited continuing Flemming’s trial until October
28, 2014. R. 406 (Order Adjourning Dates at 1) (Page ID #3024).
The district court denied Flemming’s pretrial motions on September 8, 2014. R. 422
(Order Denying Mots. for Discovery) (Page ID #3082); R. 423 (Order Denying Mot. for Bill of
Particulars) (Page ID #3091); R. 424 (Order Denying Mots. to Dismiss or for Discovery for
Selective or Vindictive Prosecution) (Page ID #3098); R. 425 (Order Denying Mots. to Dismiss
for Speedy Trial Act Violations) (Page ID #3105); R. 426 (Order Denying Mot. for Withdrawal
of Attorney) (Page ID #3110). Flemming was not finished: on September 18 and 19, he moved
for reconsideration of many of the district court’s September 8 orders, and also moved for a
venue change. R. 431 (Mot. to Reconsider—Speedy Trial Act) (Page ID #3171); R. 433 (Mot.
16
No. 15-2248
United States v. Irvin Flemming
for Reconsideration—Withdrawal) (Page ID #3230); R. 434 (Mot. for Change of Venue) (Page
ID #3233); R. 435 (Mot. to Reconsider—Selective or Vindictive Prosecution) (Page ID #3282).
More motions followed. On September 23, 2014, a case manager from the district court
emailed Flemming, explaining that his trial date would need to be moved so the court could
begin a different criminal trial. R. 459-2 (9/23/14 Email from Carol Cohron to Irvin Flemming)
(Page ID #3694). That email instructed Flemming to stipulate to a new trial date with the
government. Id. Because Flemming was unwilling to do so, the government filed a motion to
adjourn his trial, R. 455 (Mot. to Adjourn) (Page ID #3653), which Flemming opposed, R. 459
(Resp. to Gov’t Mot. to Adjourn) (Page ID #3678). On January 21, 2015, the district court
issued an order setting March 17, 2015 as the first date of Flemming’s trial. R. 487 (1/21/15
Order at 2) (Page ID #4113). And it was not until March 18, 2015—one day after voir dire
concluded—that the district court denied Flemming’s motions for reconsideration and change of
venue. R. 521 (3/18/15 Order at 1–2) (Page ID #5663–64).
That lengthy recitation takes us from Flemming’s January 31, 2013 arraignment through
the first day of his trial on March 17, 2015. The combination of excludable-delay orders and
Flemming’s pretrial motions had the effect of tolling Flemming’s speedy-trial clock for the
duration of that period. Because every single day between January 31, 2013 and March 17, 2015
was properly excludable under the Speedy Trial Act, we hold that the district court did not
violate Flemming’s Speedy Trial Act rights.
17
No. 15-2248
United States v. Irvin Flemming
B. Marital-Communications Privilege
1. Standard of Review
Flemming faults the district court for allowing Jacqueline to testify about an allegedly
privileged conversation, and also for hearing oral argument about Jacqueline’s testimony in front
of Flemming’s jury. We construe this argument as a claim that the district court erred by
allowing Jacqueline to recount her conversation with Flemming about the $10,000 cash-
transaction reporting requirement. We review for an abuse of discretion the district court’s
resolution of this privilege issue. United States v. Morales, 687 F.3d 697, 701–02 (6th Cir.
2012). Moreover, “reversal is appropriate only if the abuse of discretion was not harmless error,
that is, only if the erroneous evidentiary ruling affected the outcome of the trial.” Id. (quoting
United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011)); see also United States v. Howton,
260 F. App’x 813, 819 (6th Cir. 2008) (reviewing for harmless error district court’s erroneous
admission of letter subject to marital-communications privilege).
2. The district court did not abuse its discretion when it struck part of
Jacqueline’s testimony that arguably violated the marital-
communications privilege and then gave Flemming’s jury a curative
instruction, and any alleged error would have been harmless.
At the outset, we think it important to review what did and did not happen during
Jacqueline’s direct examination. The district court did not order Jacqueline to testify about her
conversations with Flemming. The government introduced Jacqueline as a witness, and she
testified under an immunity grant. Jacqueline testified that sometime in 2010, she told Flemming
18
No. 15-2248
United States v. Irvin Flemming
that cash deposits in excess of $10,000 require special paperwork. Outside the presence of the
jury, Jacqueline stated that she and Flemming had this conversation before June 2010.
After hearing oral argument about whether Jacqueline’s testimony violated a marital
privilege, the district court asked the parties to brief the issue; only the government responded to
the district court’s invitation. After considering the government’s brief, the district court issued
an oral ruling—outside the presence of the jury—that Jacqueline’s testimony violated the
marital-communications privilege. The district court then gave Flemming’s jury a curative
instruction, telling them to disregard Jacqueline’s privileged testimony.
This was not an abuse of discretion. Even if we were to find an error, we are confident
that any error would be harmless. We address each issue in turn.
a. The district court did not abuse its discretion when it struck
Jacqueline’s testimony and then gave Flemming’s jury a curative
instruction.
The district court did not abuse its discretion when it held that Jacqueline’s testimony
violated the marital-communications privilege, and then cured that error by instructing
Flemming’s jury to disregard her testimony.
“The confidential marital communications privilege excludes confidential
communications made by one spouse to the other during the marriage.” United States v. Porter,
986 F.2d 1014, 1018 (6th Cir. 1993). “There are three prerequisites to the assertion of this
privilege. (1) At the time of communication there must have been a marriage recognized as valid
by state law; (2) the privilege applies only to utterances or expressions intended by one spouse to
convey a message to the other . . . ; and (3) the communication must be made in confidence.” Id.
19
No. 15-2248
United States v. Irvin Flemming
(internal quotation marks and citations omitted). However, the marital-communications
privilege is subject to the “joint participants exception”: communications between a married
couple “regarding joint ongoing or future patently illegal activity” are not privileged. United
States v. Sims, 755 F.2d 1239, 1243 (6th Cir. 1985).
Although this is a close question, we agree with the district court that Jacqueline’s
conversation with Flemming about reporting cash transactions was probably privileged.
Jacqueline and Flemming were married when the conversation occurred; Jacqueline discussed
the cash-reporting requirement because she wanted to convey a message to Flemming; and it
seems likely that Jacqueline made that communication to Flemming in confidence. Porter, 986
F.2d at 1018.
This conversation arguably fell within the joint-participants exception. Jacqueline may
not have been indicted, but the substance of her communication with Flemming concerned an
illegal activity that they jointly undertook: structuring cash deposits. See Sims, 755 F.2d at
1243. On the other hand, Jacqueline also testified—outside the presence of the jury—that she
and Flemming had this conversation before June 2010; as the district court noted, “at the time
[Jacqueline] made the communication” she may have been unaware “that [Flemming] was
engaged in any structuring activity or criminal activity.” R. 545 (Trial Tr. at 17) (Page ID
#6485). In any event, we cannot say that the district court abused its discretion when it
determined that the joint-participants exception did not apply.
20
No. 15-2248
United States v. Irvin Flemming
More to the point, the district court did not abuse its discretion when it struck
Jacqueline’s testimony about her conversation with Flemming and gave Flemming’s jury a
curative instruction. “[P]roperly prepared curative instructions are often sufficient to cure any
prejudice resulting from the jury hearing inadmissible evidence.” United States v. Blakeney, 942
F.2d 1001, 1030 (6th Cir. 1991). Such is the case here: without drawing undue attention to
Jacqueline’s testimony, the district court firmly instructed Flemming’s jury to disregard it.
Moreover, we presume that Flemming’s jury “underst[ood] and follow[ed]” that instruction.
United States v. Wiedyk, 71 F.3d 602, 608 (6th Cir. 1995) (citation omitted).
b. Jacqueline’s testimony was harmless as to Flemming’s conviction
for structuring.
Even if the district court had erred by striking Jacqueline’s testimony and then giving a
curative instruction, any error would have been harmless.
In assessing whether admission of Jacqueline’s testimony was harmless error, “[o]ur
concern is not with whether there was sufficient evidence on which [the defendant] could have
been convicted without the evidence complained of, but rather the question is whether there is a
reasonable possibility that the evidence complained of might have contributed to the conviction.”
United States v. Bell, 516 F.3d 432, 447 (6th Cir. 2008) (internal quotation marks and citation
omitted). As relevant here, “a curative instruction by the trial court [also] occasionally renders
harmless the erroneous admission of prejudicial evidence.” Id. (internal quotation marks and
citation omitted).
21
No. 15-2248
United States v. Irvin Flemming
Accordingly, we begin our harmless-error inquiry by looking to the elements of the crime
of structuring, and then determine the extent to which Jacqueline’s testimony affected the jury’s
consideration of those elements. Because “[f]ederal law requires banks and other financial
institutions to file reports with the Secretary of the Treasury whenever they are involved in a
cash transaction that exceeds $10,000[,] . . . [i]t is illegal to ‘structure’ transactions—i.e., to
break up a single transaction above the reporting threshold into two or more separate
transactions—for the purpose of evading a financial institution’s reporting requirement.” Ratzlaf
v. United States, 510 U.S. 135, 136 (1994) (internal citations omitted). To secure a defendant’s
conviction for structuring under 31 U.S.C. § 5324, the government must establish three elements:
(1) [T]he defendant must, in fact, have engaged in acts of structuring; (2) he must
have done so with knowledge that the financial institutions involved were legally
obligated to report currency transactions in excess of $10,000; and (3) he must
have acted with the intent to evade this reporting requirement.
United States v. Sutton, 387 F. App’x 595, 599 (6th Cir. 2010) (citation omitted).
Jacqueline’s challenged testimony goes to the second of these elements. Jacqueline
testified that she told Flemming that banks are required to report cash deposits above $10,000.
As the government concedes, that testimony “could have shown Flemming’s direct knowledge of
the reporting requirement.” Appellee Br. at 34.
However, we are confident that any error in allowing Jacqueline to recount her
conversation with Flemming was harmless. There was ample evidence apart from Jacqueline’s
stray comment that established Flemming’s knowledge of the reporting requirement. In
particular, the government introduced a chart detailing all of the sub-$10,000 deposits that
22
No. 15-2248
United States v. Irvin Flemming
Flemming and Jacqueline made in September and October 2010. R. 576-2 (Summary) (Page ID
#7589). Flemming and Jacqueline made thirty-six deposits into five different accounts, and none
of those deposits exceeded $10,000.
Flemming’s jury, we think, could have easily drawn two clear inferences from this chart.
First, Flemming knew that cash deposits above $10,000 needed to be reported. Second,
Flemming structured his deposits to avoid that reporting requirement. Put simply, Flemming’s
pattern of cash deposits spoke for itself.
In sum, although we do not believe that the district court abused its discretion when it
struck Jacqueline’s testimony and gave Flemming’s jury a curative instruction, we are
nonetheless confident that any error in simply providing a curative instruction rather than
ordering a more aggressive action such as a mistrial would have been harmless as to Flemming’s
conviction for structuring.
C. Kastigar Agreement
1. Standard of Review
We review for clear error the district court’s determination that the government’s
introduction of trial testimony did not breach Flemming’s Kastigar immunity agreement. United
States v. Fitch, 964 F.2d 571, 574 (6th Cir. 1992).
2. The government’s introduction of testimony about the 2007 Bentley did
not violate Flemming’s Kastigar agreement.
Flemming argues that the government breached his Kastigar immunity agreement when
it introduced testimony from Boudreau about a 2007 Bentley that Flemming purchased for “LA,”
23
No. 15-2248
United States v. Irvin Flemming
one of Powell’s associates. The government, Flemming avers, learned about the Bentley and LA
only because Flemming discussed the vehicle during his proffer session. Flemming is incorrect:
the government learned about the Bentley and LA from its own independent investigation—an
investigation that long predated Flemming’s proffer session. Thus, the government did not
breach Flemming’s Kastigar agreement when it introduced testimony about the vehicle.
We begin by considering two common types of immunity agreements: (a) transactional-
immunity agreements and (b) use-immunity agreements. Pursuant to a transactional-immunity
agreement, the government will grant a witness who has provided “incriminating information . . .
full immunity from prosecution for any offense to which the testimony relates.” Fitch, 964 F.2d
at 575. In contrast, use-immunity agreements—more “commonly referred to as [] Kastigar
agreement[s]” after the Supreme Court’s decision in Kastigar v. United States, 406 U.S. 441
(1972)—are narrower. United States v. Darwich, 574 F. App’x 582, 592 (6th Cir. 2014). Such
agreements typically “preclude[] only the use of the suspect’s statements in a prosecution against
him.” Id. Because Kastigar agreements are contracts, we interpret them using “contract law
standards,” looking to the terms of “the agreement itself” to determine whether a party has
breached. Fitch, 964 F.2d at 574.
There was no breach of the Kastigar agreement here. Flemming in effect argues that the
government used the statements he made during his proffer session against him at trial.
Flemming and the government entered into a Kastigar agreement on December 9, 2013, the
same day Flemming proffered information to the government. R. 525 (3/23/15 Gov’t Resp. at 3–
24
No. 15-2248
United States v. Irvin Flemming
4) (Page ID #5681–82). Flemming stated that he “corresponded with the government about the
Bentley” that Boudreau later discussed during his direct-examination testimony. R. 545 (Trial
Tr. at 8) (Page ID #6476).
However, Boudreau learned about the Bentley eleven months before Flemming’s proffer
session, when he researched the vehicle’s title history. Id. at 9 (Page ID #6477). And the
government knew the identity of the Bentley’s intended recipient—LaMichael Finney, AKA
“LA”—before Flemming’s proffer session, too. R. 525 (3/23/15 Gov’t Resp. at 4–5) (Page ID
#5682–83). The government did not need to “use” Flemming’s proffer statements in order to
learn about the Bentley or LA—it knew about the car, and its recipient, well before December 9,
2013.
At bottom, Boudreau’s testimony about the Bentley and LA was the product of the
government’s long-running investigation into Powell’s criminal enterprise. Because the
government did not use Flemming’s proffer-session statements against him, it did not violate
Flemming’s Kastigar agreement.
D. Brady
1. Standard of Review
We review de novo whether the government breached its Brady obligations. United
States v. Tavera, 719 F.3d 705, 710 (6th Cir. 2013). However, because Flemming failed to raise
this argument before the district court, we review for plain error his Brady challenge on appeal.
“To succeed under plain-error review, [Flemming] ‘must show (1) error (2) that was obvious or
25
No. 15-2248
United States v. Irvin Flemming
clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or
public reputation of the judicial proceedings.’” United States v. Henry, 819 F.3d 856, 874 (6th
Cir. 2016) (quoting United States v. Solano-Rosales, 781 F.3d 345, 351 (6th Cir. 2015)).
2. The government did not breach its Brady obligations.
Flemming argues that the government violated Brady when it “purposely withheld
discovery information . . . of Manheim Auto Auction transactions,” and that this “improper
tactic” prejudiced his defense. Appellant Br. at 32. Flemming appears to argue that these
records demonstrate that he spent the $230,824 in cash he deposited on legitimate purchases.
Reply Br. at 10–12. Because Flemming cannot satisfy any of the elements of a cognizable Brady
claim, this argument fails.
Brady set forth a bedrock criminal-procedure requirement: “Fundamental guarantees of
due process require the government to provide defendants with evidence it possesses that is
exculpatory and material to the defense.” Tavera, 719 F.3d at 710. A defendant who alleges that
the government has breached this obligation must satisfy three elements:
1. “The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching”;
2. “[T]hat evidence must have been suppressed by the State, either willfully or
inadvertently; and”
3. “[P]rejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
26
No. 15-2248
United States v. Irvin Flemming
Flemming has not satisfied any of these elements. First, Flemming has not shown that
the Manheim Auto Auction records were exculpatory or could have been used for impeachment.
Again, Flemming appears to argue that this evidence was exculpatory because it would have
explained how he spent the cash at issue in this case. That is non-responsive to the elements of
structuring under 31 U.S.C. § 5324. See Sutton, 387 F. App’x at 599.
Second, the government did not suppress the Manheim Auto Auction records. To the
contrary, the government invited Flemming to inspect these “voluminous” records at the U.S.
Attorney’s Office nearly two weeks before his trial started; the government invited Flemming
again after he failed to show up to inspect the documents as he had promised. R. 577-3 (3/8/15
Email from Julie Beck to Irvin Flemming at 1) (Page ID #8175).
Finally, Flemming has not shown that the Manheim Auto Auction records were material,
i.e., that the government’s alleged non-disclosure of this evidence prejudiced him. See Strickler,
527 U.S. at 280. Put simply, there was no Brady violation here.
E. U.S.S.G. § 2S1.3(b)(3)
1. Standard of Review
Our review of the district court’s decision not to reduce Flemming’s Base Offense Level
under § 2S1.3(b)(3) has two parts, each with a different standard of review. We review de novo
the district court’s “legal conclusions regarding application of the Guidelines.” United States v.
Holcomb, 625 F.3d 287, 291 (6th Cir. 2010). We review for clear error the district court’s fact-
27
No. 15-2248
United States v. Irvin Flemming
finding supporting its refusal to apply § 2S1.3(b)(3). United States v. Bolds, 511 F.3d 568, 579
(6th Cir. 2007).
2. The district court properly declined to reduce Flemming’s Base Offense
Level under U.S.S.G. § 2S1.3(b)(3).
With respect to his sentencing, Flemming argues that he was entitled to receive a Base
Offense Level of six under U.S.S.G. § 2S1.3(b)(3)’s safe-harbor reduction, because he did not
know that the cash Powell gave him came from illegal activity. We disagree: the district court
did not clearly err when it found that Flemming knew or should have known that Powell’s cash
came from a narcotics conspiracy.
Section 2S1.3(b)(3) provides that a defendant convicted of structuring under 31 U.S.C.
§ 5324 should receive a Base Offense Level of six if three conditions are met: (1) “the defendant
did not act with reckless disregard of the source of the funds” that he structured, (2) “the funds
were the proceeds of lawful activity,” and (3) “the funds were to be used for a lawful purpose.”
U.S.S.G. § 2S1.3(b)(3). To avail himself of § 2S1.3(b)(3), Flemming was required to prove—by
a preponderance of the evidence—all three of these conditions. See, e.g., United States v.
Denson, 728 F.3d 603, 614 (6th Cir. 2013).
The district court properly declined to reduce Flemming’s Base Offense Level under
§ 2S1.3(b)(3). The district court reasoned that Flemming “would have known or should have
known that” the money Powell gave him “c[a]me from some illegal source.” R. 598 (Sentencing
Tr. at 7) (Page ID #9484). Thus, the court concluded, “it could only have been with disregard or
28
No. 15-2248
United States v. Irvin Flemming
reckless disregard or maybe even willful blindness that Mr. Flemming . . . would have not known
about” the illicit nature of Powell’s funds. Id.
This conclusion was not clearly erroneous. During the period when Flemming was
structuring deposits, Powell was running a multi-million-dollar, multi-state narcotics conspiracy.
Two salient facts from the record in this case strongly suggest that Flemming knew how Powell
was earning his money. First, the pattern of Flemming’s deposits makes plain that Flemming
knew something was awry with the money Powell gave him. If Powell’s money were derived
from legitimate sources, why would Flemming deposit it in dozens of sub-$10,000 increments?
Moreover, Flemming spread this money around: he and Jacqueline made deposits into five
different accounts, none of which bore Flemming’s name. That the money Flemming deposited
was in the form of cash underscores our conclusion that Flemming, at minimum, recklessly
disregarded the money’s illegal source.
Second, Flemming knew Powell well. The two carried on an extensive professional
relationship: Flemming took hundreds of thousands of dollars of Powell’s money and spent it on
vehicles and property. And it appears that they carried on a personal friendship, too: Powell was
at Flemming’s apartment when federal authorities initiated the searches that unraveled Powell’s
criminal enterprise.
At bottom, we agree with the district court that Flemming recklessly disregarded the
illegal source of the money Powell gave him and that as a result § 2S1.3(b)(3)’s safe-harbor
reduction did not apply to him.
29
No. 15-2248
United States v. Irvin Flemming
III. CONCLUSION
For the reasons stated above, we AFFIRM Flemming’s conviction and sentence.
30