MEMORANDUM OPINION FURTHER ADDRESSING THE FREEMAN OBJECTIONS TO SPECIAL AGENT WILLIAM FLEMING'S OPINION TESTIMONY

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:

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. § 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:

(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 pipe mentioned during the recording. Agent Fleming explained, "Mr. Rich, during this conversation with Mr. Pizzuti, advised that he had a false tailpipe on his motorcycle that he used to transport, in this particular case, money." (Id.)

Defense counsel objected to Agent Fleming's summarizing of the recording and suggested that the government play the tape instead. (Dkt. #1073, Pg. ID 5985.) The government responded that, "because of the length of this particular recording, and the way in which the recording is so rapid, [the purpose of Agent Fleming's testimony is] to give context and make it less confusing for the jury when they hear it." (Dkt. #1073, Pg. ID 5985.) The court overruled the objection finding that defense counsel's concerns would be addressed in the course of the testimony. (Dkt. #1073, Pg. ID 5986.) Following the objection, Agent Fleming proceeded to testify as to the significance of the tailpipe, stating, "The significance was, it was used to transport large amounts of money and large amounts of methamphetamine, as a way to disguise it or to deter law enforcement from finding it." (Dkt. #1073, Pg. ID 5987.)

In Freeman, the jury was asked to rely on the agent's opinion without being presented with the evidence on which the agent based his opinion; meanwhile, here, the jury was presented with all of the necessary evidence to evaluate the reliability of Agent Fleming's testimony and to draw its own conclusions about the content of the recording.5

ii. Testimony to which Counsel Did Not Object

After the court overruled defense counsel's initial objection to Agent Fleming's testimony summarizing Exhibit R-5 instead of playing the recording, the government played a number of recordings—including Exhibit R-5—to the jury, and Agent Fleming testified as to his opinion about the content of the recordings.6 Defense counsel did not object to any of this testimony. Only after Agent Fleming had concluded his testimony about the recordings cited in Footnote 6 and after he had been subject to cross examination, defense counsel for Vincent Witort "object[ed] to the continued testimony of Officer Fleming as it relates to his giving his opinion after interpreting the phone calls" based on Freeman. (Dkt. #1073, Pg. ID 6034.) The government interpreted the objection as an oral motion to strike Agent Fleming's testimony (see Dkt. #1074, Pg. ID 6182) and filed a response on October 23, 2014. (Dkt. #1053, Pg. ID 5146.) Defendant Witort filed a reply on October 27, 2014 (Dkt. #1061, Pg. ID 5227), and the government and Witort's counsel orally provided their interpretations of Freeman and its application to Agent Fleming's testimony during trial. (Dkt. #1075, Pg. ID 6663-77.)

The court denied Witort's motion to strike, in part, because Witort's counsel did not raise a timely objection to Agent Fleming's testimony. (Dkt. #1075 6670, 6677.) Pursuant to Federal Rule of Evidence 103(a), "[a] party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, or the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context. . . ." Fed. R. Evid. 103(a) (emphasis added). "As a matter of policy, the objection requirement of Fed. R. Evid. 103 is intended to allow the trial court to fix errors in its decision to admit or exclude evidence on the spot, thus preventing errors that could easily be alleviated without recourse to the appellate courts." Gates v. City of Memphis, 210 F.3d 371 (6th Cir. 2000). The court had no opportunity to consider whether the testimony summarized in Footnote 6 was proper before it was presented to the jury because defense counsel did not object to the testimony. Moreover, even if some of Agent Fleming's initial testimony interpreting recordings raised the concerns discussed in Freeman, such concerns would be minimized by the court's repeated instructions to the jury to draw its own conclusions based on the evidence and by Agent Fleming's well-documented personal knowledge of the audio recordings and their underlying activities.

After the court denied Witort's motion to strike, his counsel asserted a "continuing objection to Mr. Fleming's testimony regarding his lay opinion of phone calls." (Dkt. #1075, Pg. ID 6674.)

C. Testimony Providing Context

Over the course of trial, Agent Fleming has continued to provide testimony to assist the jury in understanding the recordings. Most of his testimony was offered to provide context about the recordings to make them easier for the jury to understand. This contextual testimony was based on Agent Fleming's personal review of the recordings and his hands-on role in the investigation, and it does not implicate the concern expressed in Freeman of hijacking the fact-finding role reserved for the jury. The contextual testimony includes (1) background testimony about the time and participants of the wiretapped phone calls, as well as background testimony about activities related to the recordings; (2) testimony about Devils Diciples' members referenced in the recordings, such as nicknames, given names, whether individuals were members of motorcycle clubs, and the meaning of certain Devils Diciples terms; and (3) the FBI's activities in response to hearing the recordings.

i. Background Testimony about the Wiretapped Phone Calls

First, much of Agent Flemings commentary about the recordings was about the date, time, and participants of the phone calls (see, e.g., Dkt. #1076, Pg. ID 6846-47, 6849); whether particular recordings occurred in close temporal proximity to other recordings published to the jury (see, e.g., id. at 6848, 6850-51, 6854); and background events related to the recordings. (Jury Trial, Volume XV at 99.) When identifying the participants of certain phone calls, Agent Fleming testified regarding his personal knowledge about the identity of the voices on the recordings.7 (Dkt. #1076, Pg. ID 6838-42.) Likewise, before playing calls related to the Next of Kin, Agent Fleming testified that "Next of Kin was a riding club or an RC that wanted to become an MC or a motorcycle club. And there was a certain process they had to follow to become an MC." (Jury Trial, Volume XV at 99.) After playing the recordings related the Next of Kin's efforts to become a motorcycle club, he testified that at some point after the recordings, the Next of Kin received an MC patch, "[b]ut shortly after they put the MC patch on, they were patched over by the Vigilantes and NOK didn't exist anymore." (Jury Trial, Volume XV at 113.)

ii. Testimony about Individuals and Terms

Second, Agent Fleming's testimony provided context to the recordings by informing the jury of his understanding of particular names and words, based on his personal knowledge of the Devils Diciples. For example, Agent Fleming testified that "Barnyard" is the nickname of Paul Liss who is a member of a different motorcycle club (Dkt. #1076, Pg. ID 6855) and "Little Jon or Lil Jon" is the nickname of Jonathan Chillingworth of the Devils Diciples California branch. (Id. at 6856.; see also id. at 6860, 686-66 (identifying other members of the Devils Diciples).) He also testified that the term "Sportster" is a type of Harley Davidson motorcycle (id. at 6863) and that "Scooter's old lady bar" refers to "the Lighthouse bar." (Jury Trial, Volume XV at 101.)

As discussed above, the government solicited testimony about Agent Fleming's role in the investigation of the Devils Diciples and other motorcycle clubs that establishes how he has personal knowledge of the club's members and lingo. In some instances, the government solicited additional foundational testimony from Agent Fleming. For example, before testifying that a "DD ring"—which was referenced in Exhibit T-254—is "a ring that's presented to members based upon longevity in the [club]," Agent Fleming testified that he is familiar with DD rings because "[w]e've seized several of the DD rings. We've also seized paperwork related to the purchase of those rings." (Dkt. #1076, Pg. ID 6843.)

When necessary, the court has directed the government to solicit additional foundation to demonstrate that Agent Fleming had the personal knowledge required under Rule 701 to provide testimony about the identity and role of individuals discussed in the recorded calls. For example, after playing Exhibit T-328 to the jury, the government asked Agent Fleming if he was familiar with an individual discussed in the recording as "SA." (Dkt. #1076, Pg. ID 6871.) Agent Fleming identified "SA" as Smiley Villa. (Id.) The government asked if SA was a member of the Devils Diciples or a different organization. (Id. at 6871-72.) Defense counsel objected, and the court requested additional foundation. Agent Fleming then testified that there are wiretap calls that will be played to the jury in which individuals discuss SA's participation in a motorcycle club and he has spoken with individuals who will be testifying at this trial about SA's membership in a particular motorcycle club.8 (Id. at 6872-73.)

When the government was unable to establish a proper foundation for Agent Fleming's testimony, the court sustained defense counsel's objection. (See Jury Trial, Volume XI at 307 (concluding that sufficient foundation had not been laid for Agent Fleming's testimony about the meaning of "33").)

iii. Testimony about the FBI's Activities

Third, Agent Fleming's testimony about the recordings provided helpful context by addressing the FBI's responses to hearing the recordings, and thus assisting the jury in determining how the recordings relate to other evidence presented at trial. This testimony is distinguishable from the improper testimony in Freeman because it concerns the FBI's investigative activities, not the content of the phone calls.

For example, after the government published Exhibit T-260 to the jury, it solicited the following testimony from Agent Fleming:

(Dkt. #1076, Pg. ID 6844-45.)

Similarly, after playing a number of recordings to the jury, the government engaged in the following dialogue with Agent Fleming to place the phone calls in context with the other components of the FBI's investigation:

(Dkt. #1076, Pg. ID 6868-70.)

D. Opinion Testimony about the Content of Recordings

Last, Agent Fleming testified about his opinion of the meaning of certain conversations and statements in the recordings. As discussed in Part I, this testimony is distinguishable from the improper testimony in Freeman because (1) it is based on personal knowledge; (2) the court 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, making it possible for the jury to evaluate the reliability of his testimony.

Additionally, Freeman's holding prohibiting unfounded lay testimony opining about the meaning of recorded conversations only concerns conversations involving "ordinary language." The Freeman court approvingly cited to the concurring opinion in United States v. Hampton, 718 F.3d 978 (D.C. Cir. 2013) (Brown, J., concurring), in which Judge Brown found problematic an FBI agent's testimony about "the meaning of ordinary—albeit cryptic—recorded language," but clarified that "a lay witness with personal knowledge of a particular drug conspiracy may testify on the meaning of coded language specific to that conspiracy." Id. at 985. To the extent that Agent Fleming's testimony about the meaning of certain recordings involves the interpretation of "coded language" instead of ordinary language, Freeman would not be implicated.

Below are summaries of Agent Fleming's testimony about his opinion of the meaning of certain recordings that arguably involve the interpretation of "ordinary language":

Below are summaries of Agent Fleming's testimony about his opinion of the meaning of "coded language":

III. Conclusion

Agent Fleming's testimony related to the recordings is distinguishable from the improper testimony in Freeman and admissible under Rule 701. Accordingly,

IT IS ORDERED that Agent Fleming's testimony is admitted subject to the limitations and rulings as explained on the record and in this opinion.