Ex-Detroit Mayor Fails to Topple Convictions

     CINCINNATI (CN) – Affirming 24 corruption and bribery convictions against Kwame Kilpatrick, the Sixth Circuit rejected the former Detroit mayor’s claims about his trial attorneys’ supposed conflicts of interest.
     Kilpatrick had requested that the court appoint attorneys James Thomas and Michael Naughton to defend him against the criminal charges on which he was indicted in 2010.
     Before that case headed to trial, Kilpatrick was hit with a civil lawsuit involving a claim at issue in the criminal proceedings – his extortion of entities vying for Detroit Water and Sewerage contracts.
     When the Macomb Interceptor Drain Drainage District sued Kilpatrick in 2011, those attorneys filed Kilpatrick’s answer in the case to prevent default.
     Kilpatrick never retained Thomas and Naughton to represent him in the civil matter, however, and they later became of counsel to the O’Reilly Rancilio firm representing the water district.
     The attorneys withdrew from representing Kilpatrick in the civil suit, but Kilpatrick tried in 2012 to remove Thomas from representing him in the criminal trial.
     Kilpatrick claimed that Thomas had a conflict of interest because of his ties to a witness for the government.
     From 2005 to 2010, Thomas represented Gaspar Fiore, a man that the government identified as one of Kilpatrick’s victims.
     The trial court rejected this maneuver after the government agreed to drop any charges against Kilpatrick involving Fiore’s testimony.
     A jury in turn convicted Kilpatrick of 24 charges and served him with a 28-year prison sentence.
     After meeting earlier this year to hear Kilpatrick’s claim a conflict of interest renders the convictions void, a three-judge panel of the Sixth Circuit affirmed Friday.
     The 29-page decision emphasizes that Thomas and Naughton maintain separate offices from the firm, and they provided Kilpatrick with a copy of their request to be removed as his defense attorneys when the possible conflict arose.
     “On account of the ethical wall separating Thomas and Naughton from the O’Reilly Firm (and the physical distance between the two offices), the district court properly concluded that Kilpatrick’s lawyers were not so closely associated with the O’Reilly Firm that the firm’s conflict of interest should be imputed to them,” Judge Eugene Edward Siler Jr. wrote for the court (parentheses in original). “The trial record shows that Kilpatrick’s attorneys were loyal and diligent in their representation.”
     Kilpatrick failed to provide evidence that “his counsel did anything detrimental to his defense or failed to do something that was clearly advantageous,” the court found.
     “The most Kilpatrick’s brief alleges is that Thomas failed to cross-examine a government witness, Derrick Miller, about Miller’s conversations with Kilpatrick regarding certain city contracts,” Siler wrote. “The allegation only appears in a footnote, and Kilpatrick does not explain what Thomas should have asked Miller, or why.”
     Prosecutors also noted that Kilpatrick’s co-defendant Bobby Ferguson, cross-examined Miller because it was his turn, according to the ruling.
     “In any event, Thomas’s failure to cross-examine Miller was not facially unreasonable or indicative of a pattern of divided loyalty that tainted the trial,” Siler found.
     The court rejected Ferguson’s appeal of his conviction in the same ruling.
     Ferguson had joined Kilpatrick in challenging the inclusion of numerous statements by two federal agents during the trial.
     EPA Special Agent Carol Paszkiewicz and FBI Special Agent Robert Beeckman testified as lay persons 23 times during the trial, for example, a process that involved their summarization of evidence and interpretation of text messages and other documents.
     Kilpatrick and Ferguson had claimed that these interpretations violated lay opinion testimony Rule 701, but the appellate panel disagreed.
     “Each agent testified on multiple occasions concerning his or her years-long personal involvement in the case, including interviewing dozens of witnesses, reading scores of relevant documents and thousands of text messages, and listening to recorded phone calls,” Siler wrote. “This was not a case in which the agents lacked first-hand personal knowledge of key aspects of their testimony.”
     In upholding the lower court’s calculation of restitution that Kilpatrick owes the Detroit Water and Sewage Department, the appeals declined to quibble with the fact that the $4.5 million figure was more an estimate than “actual loss’.”
     “We recognize the dilemma the district court faced – especially because we have not previously provided guidance on this issue,” Siler wrote. “But the consensus among our sister circuits compels us to conclude that a district court may not use the defendant’s gain to approximate the victim’s loss unless the government establishes such a correlation that the defendant’s gain can act as a measure of – not a substitute for – the victim’s loss.”
     Judges Richard Allen Griffin and Helene White rounded out the panel.

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