U.S. v. Barnwell
| Decision Date | 18 June 2008 |
| Docket Number | No. 03-CR-80074-1.,03-CR-80074-1. |
| Citation | 617 F.Supp.2d 538 |
| Parties | UNITED STATES of America, Plaintiff, v. William BARNWELL, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Vincent J. Falvo, Jr., U.S. Department of Justice, Washington, DC, Walter I. Kozar, United States Attorney's Office, Detroit, MI, for Plaintiff.
Arthur J. Weiss, Farmington Hills, MI, William E. Bufalino, II, Bufalino & Palazzolo, Clinton Township, MI, Henry M. Scharg, Northville, MI, Samuel J. Churikian, Todd R. Perkins, Robert E. Forrest, Kerr, Russell, Detroit, MI, for Defendant.
This criminal matter was reassigned to this Court following Chief Judge Friedman's sua sponte recusal of himself after the case was remanded to this Court for a new trial pursuant to the Sixth Circuit's September 7, 2007 Mandate. The case is presently before the Court on two motions filed by Defendant Barnwell on January 25, 2008: a "Motion to Dismiss Indictment Pursuant to the Double Jeopardy Clause of the Fifth Amendment" and a "Motion to Dismiss Indictment Pursuant to the Speedy Trial Act." Both motions have been fully briefed by the parties and the Court heard the oral arguments of counsel on May 21, 2008. Having reviewed and considered the parties' briefs, the arguments of counsel, and the entire record of this matter, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court's ruling.
Defendant William Barnwell and four other individuals—Sandra Williamson and her husband, David Williamson; Edwin Nyhus; and Charles Jackson—were charged in a federal indictment in January 2003 with misappropriating the assets of a labor union, the Michigan Regional Council of Carpenters (the "MRCC" or the "Union") in the form of salaries, allowances and fringe benefits paid to or on behalf of a number of Union Business Agents who worked on the construction of a new home for Mr. and Mrs. Williamson, during work time, in violation of 29 U.S.C. § 501(c); and with conspiracy to engage in this misappropriation of Union assets, in violation of 18 U.S.C. § 371.1 At the time of construction work done on the Williamsons' house, Defendant Barnwell was the Director of the MRCC and in charge of the residential carpentry local, Local 1234.
The jury trial of Barnwell and his four co-defendants began on September 9, 2003 before Chief Judge Bernard J. Friedman. However, on September 16th the court learned that William Buffalino, counsel for Mr. and Mrs. Williamson, was too sick to continue with the trial. Therefore, on September 22nd, at the request of the Williamsons, the court severed these two defendants and declared a mistrials as to them. The trial then continued as to Barnwell and his two remaining co-defendants, Nyhus and Jackson.
On October 8, 2003, both sides rested, and the next day the jury heard closing arguments, received final instructions from the court, and commenced deliberations.
Shortly after deliberations began, the jury sent a note to Judge Friedman requesting the transcripts of the testimony of three witnesses. After discussing the matter with the parties, the court denied the jury's request, asking them to rely upon their memories. The jury deliberated for the remainder of the day and then retired for the night.
At approximately 8:19 p.m. on the evening of that first day of deliberations, the FBI in a separate and unrelated matter, intercepted a telephone call pursuant to a wiretap authorized by Judge Friedman. The intercepted telephone call was between two individuals who were the subject of a then 15-year-long ongoing investigation. In that phone conversation, the targets discussed the trial of "our friend" downtown. One of the targets stated that a female juror in the trial had reported that the jury vote was 8 to 4 for conviction at one point, but that it had shifted towards acquittal, 10 to 2.
The following morning the Government notified Judge Friedman ex parte of the wiretap conversation. AUSA Keith Corbett who was handling the investigation of the wiretap targets told Judge Friedman that he suspected that the female juror discussed by the targets was a juror deliberating in the Barnwell matter. (Corbett's suspicion was based upon the facts that at the time, the Barnwell case was the only criminal case in the federal court at the jury deliberation stage, and the wiretap targets, like the defendants on trial, were from Macomb County.)2 Judge Friedman decided to address the issue by meeting with the foreperson of the jury in chambers with a court reporter present.
After meeting with the foreperson Judge Friedman concluded that the wiretapped conversation did not relate to the Barnwell jury because, according to the foreperson, the jury vote was never 8 to 4. Judge Friedman solicited and obtained the numerical division of the jury as of that time (11 to 1), but not the direction in which the jury was leaning. Judge Friedman thereafter telephoned AUSA Corbett and advised him that he was not going to take any further action.
After his ex parte conversation with Judge Friedman, Corbett met with the Government's trial attorney and FBI agents. During this meeting, one of the agents identified one of the deliberating jurors as the sister of one of the wiretap targets. The Government's attorneys then re-contacted Judge Friedman and advised him of this discovery. However, before Judge Friedman could take any action, the jury foreperson sent the Judge a note asking to see him.
Judge Friedman then met with the foreperson in camera but on the record. The foreperson reported, United States v. Barnwell, 477 F.3d 844, 849 (6th Cir.2007). Nonetheless, the judge told the jury to go to lunch and think more about the case.
After lunch and additional deliberations following the lunch break, the jury sent another note stating "Jury is hung with no possibility of coming [to] a unanimous decision." Id. at 849-50. Judge Friedman then published the note to all trial counsel and asked counsel for their views. Barnwell's attorney stated that the jury should be allowed to be hung and counsel for Defendant Nyhus concurred. Defendant Jackson's attorney was in favor of a modified Allen charge. Government counsel expressed no view stating that the matter was within the discretion of the court. Judge Friedman agreed with the counsel for Barnwell and Nyhus that there was no possibility of the jury coming to a unanimous decision and declared a mistrial.
Prior to the scheduled retrial, Judge Friedman denied Barnwell's and his co-defendants' post-trial motions for judgment of acquittal. Also prior to retrial, the Government voluntarily dismissed all charges against Defendant Nyhus and the court entered an order severing Defendant Jackson so Jackson could pursue an interlocutory appeal.
Barnwell was retried along with Mr. and Mrs. Williamson. The retrial began on April 26, 2004 and concluded on May 27, 2004 when the jury returned guilty verdicts against all three defendants on all counts of the indictment in which they were named. On September 13, 2003, Barnwell was sentenced to two concurrent terms of probation, with the first six months to be served in home confinement. Barnwell thereafter appealed his conviction and sentence.
After filing his Notice of Appeal, Barnwell was informed for the first time about the ex-parte communications between Judge Friedman, the prosecution and the government agents concerning potential juror misconduct during the first trial. Barnwell relied upon those communications in bringing his appeal, arguing that the Double Jeopardy clause prevented a retrial, or in the alternative, contending that he was entitled to a new trial. United States v. Barnwell, 477 F.3d at 850.
On February 27, 2007, a panel of the Sixth Circuit reversed Defendant's conviction and remanded the case for a new trial. The panel held (2-1) that the ex parte communications between Judge Friedman and the government attorneys during the first trial violated Defendant Barnwell's constitutionally prescribed rights to due process, effective assistance of counsel, and trial by an impartial judge and jury.3
After the Government's petition for rehearing en banc was denied, the Sixth Circuit issued its mandate on September 7, 2007. The mandate was received and filed by this Court on September 14, 2007. On October 12, 2007, pursuant to 28 U.S.C. § 455, Judge Friedman disqualified himself from this case and the case was reassigned to this Court pursuant to Eastern District of Michigan L.Cr.R. 57.10(c)(1).
Due to the unavailability of Judge Friedman caused by his serious illness, the Court determined that the ends of justice were served by excluding under the Speedy Trial Act the period of time that the case remained pending before Judge Friedman prior its reassignment to this Court. Therefore, the Court entered an "Order for Excludable Time" excluding the period from September 7, 2007 through October 12, 2007. The parties also stipulated to toll the Speedy Trial Act from December 17, 2007 through March 31, 2008 and a stipulated Order was entered accordingly. In the meantime, on January 25, 2008, Defendant Barnwell filed the subject Motions to Dismiss Indictment arguing that his rights under the Double Jeopardy Clause and the Speedy Trial Act have been violated.
The law of the case doctrine bars relitigation of issues that were decided at an earlier stage of the litigation, either explicitly or by necessary...
To continue reading
Request your trial
-
Kitchen v. Court of Common Pleas
...relevant intent is intent to terminate the trial, not intent to prevail at this trial by impermissible means."United States v. Barnwell, 617 F.Supp.2d 538, 547 (E.D. Mich. 2008) (citations omitted; emphasis added) (quoting United States v. Oseni, 996 F.2d 186, 188 (7th Cir. 1993). Notably, ......
-
Drive Logistics Ltd. v. PBP Logistics LLC
...the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice.United States v. Barnwell, 617 F. Supp. 2d 538, 543 (E.D. Mich. 2008) (citations and quotation marks omitted), aff'd, 364 F. App'x 240 (6th Cir. 2010). The following issues were expli......
-
Schafer v. Multiband Corp.
...court or a coordinate court, it is ‘rigidly applied to enforce a lower court's obedience to a higher court.’ ” United States v. Barnwell, 617 F.Supp.2d 538, 543 (E.D.Mich.2008) (quoting Williams, 247 Fed.Appx. at 7 ) (emphasis added).10 Likewise, the Court need not address Multiband's alter......
-
United States v. Dixon
...speedy trial time "16 days relating to the intradistrict transfer of Cheek's case from one judge to another." United States v. Barnwell, 617 F. Supp. 2d 538, 550 (E.D. Mich. 2008). On appeal, the Seventh Circuit explained that the statutory language of 18 U.S.C. § 3161(h)(1)(E) is "broad en......