1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0265p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

E MMANUEL G YAMFI , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 14-2247

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit. No. 2:13-cr-20055—George C. Steeh, District Judge. Decided and Filed: October 19, 2015 *

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

_________________ COUNSEL

ON BRIEF: William W. Swor, Detroit, Michigan, for Appellant. Stephanie M. Gorgon, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ BERNICE BOUIE DONALD, Circuit Judge. In the Detroit Metro politan Airport, Customs and Border Patrol (“ CBP”) officers stopped Appellant Emmanuel Gyamfi (“Gyamfi”) while he was traveling to Detroit from Ghana. Th ey found at least one kil ogram of heroin neatly

* This decision was originally issued as an “unpublished decision” filed on October 19, 2015. The court has now designated the opinion as one recommended for full-text publication.

 The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by designation. 

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

packed in the inner linin g 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 f ound Gyamfi guilty, and the district court sentenced Gyamfi to seventy-two months in prison. On a ppeal, Gyamfi contends that the district court improperly admitted conclusory testimony as to his mental state without laying a proper foundation. We disagree and AFFIRM the conviction.

I.
On January 8, 2013, Gyamfi arrived at the Detr oit Metropolitan Airpor t after a long trip from Ghana. When he arrived at the prim ary customs checkpoint, CBP Officer David Myers asked Gyamfi some basic questio ns about the purpose of his tri p. 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 cust oms 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 atte mpted to explain that he was on his way to visit a cousin in Connecticut, but that he had cha nged his original departure date because his daughter fell ill when he had initially planned to leave. Appella nt’s Br. 2. Officer Crocker selected Gyamfi’s baggage for inspection and escorted Gyamfi to the baggage control area, where three officers, Dawn Matthews, Seth Russell, and Nathan Ever s, interrogated Gyamfi about the suitcase’s

contents.
After the officers emptied the suitcase of its visible contents , Officer Evers picked up the
suitcase and noticed that it still seemed to have something in it. Officer Russell then ran the suitcase through an X-ray machine, which revealed images of an oddly shaped “green blob” inside the suitcase. CBP Supervising Officer Ch ristopher Anaya then joined the investigation. Appellant’s Br. 3.
While Officer Evers placed Gyamfi in handc uffs, 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 askedNo. 14-2247 United States v. Gyamfi Page 3

Gyamfi a series of questions a bout whether he knew about the dr ugs in his suitcase. Gyamfi denied knowing anything about the contents and later testified at tria l that his wife purchased the
suitcase secondhand.
At trial, the government intr oduced testimony from Officers Myers, Crocker, Matthews, Evers, Russell, and Anaya, who all had interacted with Gyamfi on the day of his arrest. Four of the six officers consistently and sim ilarly described Gyamfi as “nervous.”

Government’s direct examin ation of Officer Crocker: Q. And prior to even speaking to him, did you make any observations about him? A. He seemed to be a little nervous, and his movements were sort of exaggerated . . . .
Q. What about the way he presented to you caused you to send him over [to] inspection? A. Just the fact that he seemed ner vous and fidgety, and also that he had changed his ticket before his travel . . . .

Government’s direct examin ation of Officer Matthews: Q. Can you describe the defendant’s appearance when he initially came to you with the suitcase? A. When he was brought over to our area, I noticed he was sweating a lot and he was walking—as he was walking up to us with his head down, and when he place[d] his bags on the belt, I noticed his hands were trembling, and he seemed like he was either upset or nervous . . . .
Q. And as you were questioning him, can you describe generally his demeanor? A. He was still nervous. As I was speak ing to him[,] he was still wiping off his face and his brow with the paper to wel, and he put it in his hands and moved it back and forth almost like a wringing type of fashion [sic]. Q. In your experience are people gene rally nervous at baggage control secondary?
Defense: Objection. Irre levant. What other pe ople are is irrelevant. Court: Ms. Prasad? Government: I’ll move on.No. 14-2247 United States v. Gyamfi Page 4

Q. And he’s speaking with his language impediment? A. Yeah. He was stammering, kind of like tripping over his own words, and I just figured that was because he was a little nervous . . . .

Government’s direct exam ination 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 Cr ocker, and he appeared very nervous. He was sweating very bad. He was kind of stumbling when he walked over to us. Q. Did he maintain eye contact with you? Defense: Objection. Relevance. I mean, you know, I have not objected prior, but this really is a ll kind of—excuse the expression—voodoo testimony. It is sort of like Ca m[u]s’ trial where we’re talking about whether or not he loved hi s 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 exam ination of Officer Anaya: Q. Can you describe the defendant’s dem eanor at this point in the process? A. Once we started dismantling the bag, I remember looking over at him. He dropped his head. We call it the wind going out of your sails. It’s was [sic] just, you know, like giving up mo tion [sic], something like that. Defense: Objection. Move to strike all the speculation, the commentary material. This witness is not b een [sic] offered to—offer any kind of opinion. Government: Well, your Honor, he wa s describing what he observed. Defense: He went beyond describing with a whole bunch of editorial is what we call it, and things of that nature.No. 14-2247 United States v. Gyamfi Page 5

Government: I can move on. Court: All right [sic] . . . .

II.
Gyamfi makes three arguments on appeal: (1) that the district court abused its discretion in admitting the CBP officers’ testimony because it failed to meet Federal Rule of Evidence 701’s foundational requirements; (2) that the distri ct court abused its discretion in admitting the CBP officers’ testimony because it made legal conc lusions; and (3) that the district court abused its discretion in admitting the CBP officers’ te stimony because it was irrelevant evidence of Gyamfi’s character, which is impermissible under Rule 404.

A.
The standard of review is in dispute. Th e government contends that this Court must review Gyamfi’s conviction and sentence for plai n error because it contends that Gyamfi failed to preserve his arguments by properly object ing to the contested ad missions of officers’ testimony. See United States v. Bostic , 371 F.3d 865, 872-73 (6th Cir. 2004) (“If a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity to speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain erro r review on appeal.”) Although Gyamfi made three objections, we need not determine whether Gyamfi’s counsel sufficiently preserved the arguments he now makes on appeal, because Gyamfi’s arguments fail whether we apply plain error review or the more demanding abuse of discretion scope of review.

B.
Gyamfi first argues that the government fa iled to establish a proper foundation under Rule 701 to admit officers’ testimony “describ ing their perception of Gyamfi’s physical demeanor.” Appellant’s Br. 4. Gyamfi conte nds 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 th at his suitcase contai ned heroin. What was missing, Gyamfi asserts, was the officers’ fi rst-hand knowledge to support their “particular interpretations” of his body langua ge. Appellant’s Br. 19. To be clear, Gyamfi agrees that theNo. 14-2247 United States v. Gyamfi Page 6

trial court properly admitted the officers’ opinion testimony regarding their objective observations of his physical appearance; rather Gyamfi’s arguments on appeal concern the officers’ testimony that he was “nervous” duri ng the interrogation. A ppellant’s Reply Br. 6.
Rule 701 states that testimony in the form of a lay person’s opinion may be admitted only if the testimony meets the following requirements: (a) it is rationally based on the witness’ perception; (b) it is help ful to clearly understanding the witn ess’ testimony or to determining a fact in issue; and (c) it is not based on sc ientific, technical, or other speciali zed knowledge within the scope of Rule 702. See id. advisory committee’s notes. The party offering the testimony
under Rule 701 must establish that al l three requirements are satisfied. United States v.
Freeman , 730 F.3d 590, 595-96 (6th Cir. 2013) (vacating a conviction due to ev identiary errors concerning a case agent’s testimony).

In Freeman, we concluded that, in order to satisfy Rule 701(b), an officer describing a particular event must limit testimony to his or he r “own sensory and experi ential observations.” 730 F.3d at 595, 597. Speaking outside of these pers onal observations can potentially lead to “merely tell[ing] the jury wh at result to reach” or, wors e, spoon-feeding the jury the government’s theory by using hearsay or othe rwise unreliable conclusory statements. Id. at 597 (citation omitted); see also United States v. Albertelli , 687 F.3d 439, 447 (1st Cir. 2012) (recognizing the possible dangers with testimony given by an ag ent, such as “effectively smuggl[ing] in inadmissible evidence,” “drawing in ferences that counsel could do but with . . . the imprimatur of testifying as a law enforcemen t officer,” “usurp[ing] the jury’s function by effectively testifying as to gu ilt,” and speculating). This is particularly unhelpful when a witness, lay or expert, forms conc lusions for a jury that the juro rs were competent to reach on
their own. Freeman , 730 F.3d at 597.
We have also held, however, that testimony a bout 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 te stimony describing that th e defendant “appeared nervous during his interview”). Additionally, testimony related to a person’s manner of conduct is categorized as a prototypical example of Rule 701 evidence. See Asplundh Mfg. Div. v. Benton Harbor Eng’g , 57 F.3d 1190, 1196 (3d Cir. 1995).No. 14-2247 United States v. Gyamfi Page 7

Gyamfi turns to our decision in Freeman for support, arguing th at the CBP officers similarly lacked sufficient personal knowledge to testify because they “did not establish what personal experiences or first-hand knowledge led them to reach their interpretations” of Gyamfi’s demeanor as “nervous.” See Appellant’s Br. 19. Yet, the facts in Freeman are materially different from the facts in this case. In Freeman , a defendant appealed his conviction on the ground that the district court erred by permitting a Federal Bureau of Investigation (“FBI”) agent to interpret the meaning of stat ements 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 ri ch, Ohio” to mean that the de fendant was looki ng forward to being paid for the victim’s murder. Id. at 593. The agent al so interpreted “the count was fiftysix twenty” to mean $5,620, in reference to money paid for killing the victim. Id. at 594. The testimony was improper under Rule 701, because the testimony was based on a recorded conversation in which the agent had no personal involvement or first-hand experience. Id. at
596-97.
However, unlike the FBI agent in Freeman , the CBP officers here had the benefit of physical presence and active partic ipation 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 experien tial observations,” distinct fr om any broad conclusions or allegations directed to the merits of the case. For instance, the officers’ testimony included statements that Gyamfi was “fidgety,” that hi s movements were “exaggerated,” that his hands were “trembling,” that he was “t ripping over his own words,” that he was “sweating very bad,” and ultimately that he appeared “nervous”—al l of which a person observes and understands based on experiences from everyday life. Appellant’s Br. 19-20. Therefore, the district court did not abuse its discretion, nor did it commit plain error in fi nding a sufficient personal knowledge basis for admission of the officers’ testimony.

C.
Second, Gyamfi argues that th e district court’s admission of the officers’ testimony describing Gyamfi’s “nervousness” was improper be cause the testimony prev ented the jury from reaching its own conclusion. Gyamfi contends that the officers’ testimony improperly raised theNo. 14-2247 United States v. Gyamfi Page 8

inference that Gyamfi knew that he had heroin in his suitcase. Consequently, he argues that the testimony “affected the jury’s ability to fairly asse ss all the facts in eviden ce” because it “directly contradicted Gyamfi’s defense that he neither owned the suitc ase” nor knew anything about the
heroin contained therein. A ppellant’s Br. 23. We disagree.
The issue here in some ways overlaps with th e 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 conclusi on. Gyamfi again cites a case where this Court found testimony interpreting recorded conversations inadmissible. Again, facts involving interpretations of recorded encounters are wholly distinct fro m facts where officers interpreted what they indeed perceived first-hand, in an en counter that cannot be re-played for a juror.
Although “nervousness” describes an emotion, the jury only considered testimony that described any ordinary person’s everyday observa tions from a first-ha nd account. Describing
one as “nervous” is no different from descri bing one as “sad” or “happy,” which are all everyday, ordinary observations. True, had the officers speculated as to why Gyamfi appeared “nervous,” by expressly suggesting guilt, then, indeed, the testimony may have impermissibly suggested a legal conclusion.
Although one may infer knowledge of heroin possession based on the description of “nervousness,” criminal guilt is still far from th e only inference one could draw. Alternatively, one could attribute Gyamfi’s nerv ousness to the fact that he is thousands of miles away from home, that he is in a foreign country, or due to apprehension about forgetting something on the plane. In other words, one could reasonably imagine someone looking “nervous” at an airport without having done anything wrong.
Further, Gyamfi argues that describing Gyamfi’s gestures as a “giving up motion” was in the form of an impermissible psychological and le gal conclusion that a witness is not qualified to make. The description does not establish the mental state of the charged offense—knowledge— but rather the demeanor of Gyamfi . Describing what someone else knows in fact requires expert witness qualifications. The di stinction, although admittedly s ubtle, between lay and expert witness testimony is that lay test imony results from a process of reasoning that is familiar inNo. 14-2247 United States v. Gyamfi Page 9

everyday life, while expert testimony results from a process of reasoning that can be mastered only by specialists in the field. United States v. Kilpatrick , 798 F.3d 365, 385 (6th Cir. 2015). Because a gesture expressing “giving up” is a familiar expression in everyday life, the officers in this case could have reasonably perceived the gesture or motion without having a mastery of a particular specialty.
The description also does not qualify as a legal conclusion. A “giving up” description could have equally described a person in a polic e interrogation giving up in response to a host of interactions—i.e., giving up out of frustratio n 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 indi cated a particular mental st ate,” as Gyamfi suggests. Appellant’s Br. 24.

D.
Third, Gyamfi argues that the district cour t abused its discretion in admitting the CBP officers’ testimony because it was improper character evidence under Rule 404. This argument also fails, mostly for r easons already stated.
Rule 404 states that “evidence of a person’s ch aracter or character tr ait is not admissible to prove that on a particular occas ion the person acted in accordance with the character or trait.” Without citing any case law that would even sli ghtly 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 acco rdance with [his] character,” but to describe his appearance on January 8, 2013. Of course, had the officers testif ied 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.