                               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
                                          _________________


 UNITED STATES OF AMERICA,                                       ┐
                                         Plaintiff-Appellee,     │
                                                                 │
                                                                 │         No. 14-2247
            v.                                                   │
                                                                  >
                                                                 │
 EMMANUEL GYAMFI,                                                │
                                     Defendant-Appellant.        │
                                                                 ┘
                              Appeal from the United States 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, Circuit 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 Metropolitan Airport,
Customs and Border Patrol (“CBP”) officers stopped Appellant Emmanuel Gyamfi (“Gyamfi”)
while he was traveling to Detroit from Ghana. They found at least one kilogram 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         This decision was originally issued as an “unpublished decision” filed on October 19, 2015.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.




                                                        1
No. 14-2247                      United States v. Gyamfi                        Page 2

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 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.

       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’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 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. CBP Supervising Officer Christopher Anaya then joined the investigation.
Appellant’s Br. 3.

       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
No. 14-2247                      United States v. Gyamfi                        Page 3

Gyamfi a series of questions about whether he knew about the drugs in his 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 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 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 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 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 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 speaking to him[,] he was still wiping off
                his face and his brow with the paper towel, 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 generally nervous at baggage control
                secondary?

       Defense:        Objection. Irrelevant. What other people 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 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 this really is all kind of—excuse the expression—voodoo
                        testimony. It is sort of like Cam[u]s’ 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:

      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’s was
               [sic] just, you know, like giving up motion [sic], something like that.
      Defense:          Objection. Move to strike all the speculation, the commentary
                        material. This witness is not been [sic] 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.
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 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 Rule 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 it contends that Gyamfi failed
to preserve his arguments by properly objecting to the contested admissions 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 error 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 failed to establish a proper foundation under
Rule 701 to admit officers’ testimony “describing their perception of Gyamfi’s physical
demeanor.” Appellant’s Br. 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’s Br. 19. To be clear, Gyamfi agrees that the
No. 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” during the interrogation. Appellant’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 helpful to clearly understanding the witness’ testimony or to determining a
fact in issue; and (c) it is not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702. See 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).

       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.”
730 F.3d at 595, 597. Speaking outside of these personal observations can potentially lead to
“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, 447 (1st Cir. 2012)
(recognizing the possible dangers with testimony given by an agent, such as “effectively
smuggl[ing] in inadmissible evidence,” “drawing inferences that counsel could do but with . . .
the imprimatur of testifying as a law enforcement officer,” “usurp[ing] the jury’s function by
effectively testifying as to guilt,” and 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.

       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 the 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 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’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 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 the 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. Id. at
596-97.

       However, unlike the FBI 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 Gyamfi 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 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 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
No. 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 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’s Br. 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 where 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 everyday observations from a first-hand account. Describing
one as “nervous” is no different from describing 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 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, 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 legal 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 distinction, although admittedly subtle, between lay and expert
witness testimony is that lay testimony results from a process of reasoning that is familiar in
No. 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 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’s Br. 24.

                                                 D.

       Third, Gyamfi argues that the district court abused its discretion in admitting the CBP
officers’ testimony because it was improper character evidence under Rule 404. This argument
also fails, mostly for reasons already stated.

       Rule 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.
