United States of America v. Emmanuel Gyamfi

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0702n.06
Case No. 14-2247
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EMMANUEL GYAMFI,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
BEFORE: ROGERS and DONALD, Circuit Judges; ROSE, District Judge.*
BERNICE BOUIE DONALD, Circuit Judge. In the Detroit Metropolitan Airport,
Customs and Border Patrol (“CBP”) officers stopped Appellant-Defendant Emmanuel Gyamfi
(“Gyamfi”) while he was traveling to Detroit from Ghana. They found at least one kilogram of
heroin neatly 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
*The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by
designation.

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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.
A.
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 Br. at 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. CPB Supervising Officer Christopher Anaya then joined the investigation.
(Appellant Br. at 3.)

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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
Gyamfi a series of questions about whether he knew about the drugs in the 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 the testimony of officers Myers, Crocker, Matthews,
Evers, Russell, and Anaya who all 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?
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 placed his bags on the belt, I noticed his hands
were trembling and he seemed like he was upset or nervous.
Q. 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

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in his hands and moved it back and forth almost like (sic) wringing
type of fashion.
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.
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 his really is all kind of–excuse the
expression—voodoo testimony. It is sort of like Camus’
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:

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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 was just, you know, like (sic) giving up motion, something
like that.
Defense: Objection. Move to strike all the speculation, the
commentary material. This witness is not being 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.
Government: I can move on.
Court: Alright.
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 Fed. R. Evid. 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 Fed. R. Evid. 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 Gyamfi failed to preserve his
arguments by properly objecting to the contested admissions of officers’ testimony.
This Court maintains that, to adequately preserve an objection, a party must object with a
reasonable degree of specificity. United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004). “If a
party does not clearly articulate any objection and the grounds upon which the objection is based,

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when given the 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.” Id. at 872-73.
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 proper foundation under Fed.
R. Evid. 701 to admit officers’ testimony “describing their perception of Gyamfi’s physical
demeanor.” (Appellant Br. at 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 Br. at 19.) To be clear, Gyamfi agrees that the
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 Reply Br. at 6.)
Rule 701 states that testimony in the form of a lay person’s opinion may be admitted only
if it is: (a) rationally based on the witness’ perception; (b) helpful to clearly understanding the
witness’ testimony or to determining a fact in issue; and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701; see also 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.

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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.”
Freeman, 730 F.3d at 595, 597. Speaking outside of these personal observations can engage
witnesses in “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, 446-47 (1st Cir. 2012)
(recognizing that an agent’s testimony may effectively smuggle in inadmissible evidence, that he
may be “drawing inferences that counsel could do but with . . . the imprimatur of testifying as a
law enforcement officer,” that he may “usurp the jury’s function,” and that he may be “doing
nothing more than 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 (citing McGowan v. Cooper Indus., Inc., 863 F.2d 1266, 1272 (6th Cir. 1998)).
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 a defendant
“appeared nervous during his interview”). Additionally, testimony related to a person’s manner
of conduct is also 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).
Gyamfi turns to our decision in United States v. 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 Br. at 19.) Yet, the facts in
Freeman are materially different from the facts in this case. In Freeman, a defendant appealed

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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 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. Freeman,
730 F.3d at 596-97.
However, unlike the 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
Aston 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 based on experience from everyday life.
(Appellant Br. at 19-20.) Therefore, the district court did not abuse its discretion 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

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inference that Gyamfi knew that he had heroin in his suitcase. Consequently, he argues, 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 Br. at 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 in which 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 every day observations from a first-hand account. Describing
one as “nervous” is no different from describing one as “sad” or “happy,” which any ordinary
person observes in everyday encounters. True, had the officers speculated as to why Gyamfi
appeared “nervous,” by expressly suggesting guilt, then, indeed, the testimony may have
impermissibly suggest 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, 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.

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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 give. The description does not establish the essential mental state of the charged offense—
knowledge—but rather the demeanor of Gyamfi. Describing what someone 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 everyday life, while expert testimony results from a process of reasoning which can
be mastered only by specialists in the field. United States v. Kilpatrick, No. 13-2500, 2015 WL
4774914, at *14 (6th Cir. Aug. 14, 2015) (internal citation omitted). 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 Br. at 24.)
D.
Third, Gyamfi argues that the district court abused its discretion in admitting CBP
officers’ testimony because it was improper character evidence under Fed. R. Evid. 404. This
argument also fails, mostly for reasons already stated.

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Fed. R. Evid. 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.

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