United States v. Barr

• Decision Date: 26 May 2020
• Docket Number: No. 19-1238,19-1238
• Citation: 960 F.3d 906
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Warren N. BARR, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

960 F.3d 906

UNITED STATES of America, Plaintiff-Appellee,

v.Warren N. BARR, III, Defendant-Appellant.

No. 19-1238

United States Court of Appeals, Seventh Circuit.

Argued December 4, 2019

Decided May 26, 2020

Saurish Appleby-Bhattacharjee, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael I. Leonard, Attorney, Leonard Meyer LLP, Chicago, IL, for Defendant-Appellant.

Before Manion, Kanne, and Barrett, Circuit Judges.

Kanne, Circuit Judge.

In 2014, the federal government charged Warren Barr with federal crimes for his role in a fraudulent real-estate-selling scheme in Chicago. But when law-enforcement officers went to arrest Barr, they discovered he was living in Saudi Arabia. For months, FBI agents attempted to extradite Barr to the United States. Despite this effort, and before the agents could get to Barr, Saudi Arabian officials detained him for unrelated conduct.

Thereafter, Barr spent several months in a Saudi Arabian prison—and once he was released, federal agents brought him back to the United States to face the federal charges against him. Barr pled guilty to making false statements to a financial institution, and he then filed a variety of motions: he asked the district court to allow more time for newly retained counsel to obtain government clearance and review classified materials; to dismiss the indictment; and to withdraw his guilty plea. The district court denied these motions and entered an order finding Barr guilty.

At his sentencing hearing, Barr tried to argue that his time in Saudi Arabia should be a mitigating factor. The district court disagreed and prevented Barr from advancing this argument at the hearing. Frustrated with this result, Barr sought the judge’s recusal. The judge denied the recusal motion and sentenced Barr to 87 months’ imprisonment.

Now Barr challenges his sentence and the district court’s orders denying his motions for additional time, the dismissal of the indictment, the withdrawal of his guilty plea, and the judge’s recusal. Because we find no error in any of these rulings, we affirm.

I. BACKGROUND

As a partner of a real-estate-development company called 13th & State, LLC, Warren Barr managed and developed real estate in Chicago. In 2004, the company started developing a condominium building in downtown Chicago; it would be named Vision on State. The company financed this project with a 55.7-million-dollar loan from IndyMac Bank.

In the same year development of the property began, 13th & State began selling residential units in Vision on State. But sales ground to a halt by March 2007. Around this time, Barr and other members of 13th & State allegedly started recruiting "straw buyers" to purchase Vision on State condos at an inflated price. As a part of this scheme, 13th & State and the recruited buyers made false representations in loan applications and real-estate contracts, thus enabling buyers to successfully purchase the condos.

Barr got involved as a buyer in this scheme about a year later by applying for a loan to purchase a Vision on State condo. As a part of his application, Barr submitted that he had two bank accounts containing over $70,000; that he was not a party to any lawsuit; and that he did not borrow any money used as a down payment. These were all lies: Barr’s bank accounts contained about $4,000 combined; he was a party to several lawsuits; and 13th & State loaned him all the money for his down payment.

As a result of this scheme, in May 2014 the government charged Barr—and five others—with multiple counts of bank fraud, 18 U.S.C. § 1344, and with making false statements to a financial institution, 18 U.S.C. § 1014. The district court issued a warrant for Barr’s arrest. But his arrest proved difficult, as he was living in Saudi Arabia. Despite this complication, by July FBI agents had contacted Barr and were negotiating for his voluntary return to the United States. Barr, however, had run into financial difficulties in Saudi Arabia; he could not pay his hotel bill and was unsure if he could afford a flight back to the United States. Indeed, agents worried that Barr might soon be put in debtors’ prison. So, agents continued to work with Barr and his lawyer to figure out a way to extradite Barr.

About a month after agents originally contacted Barr, Interpol¹ —at the request of the FBI—issued a "red notice"² for Barr’s arrest and extradition from Saudi Arabia to the United States. But Saudi Arabian officials arrested Barr around the same time for failing to pay his approximately $26,250 in debts, including a debt owed to a hotel for his recent stay.

Agents continued to struggle in their attempt to extradite Barr. During this time, Barr spent about six months detained in Saudi Arabia in what he describes as "squalid conditions." (Appellant’s Br. at 12.) Finally, in January 2015, Saudi Arabia’s Ministry of Interior approved a transfer of Barr into FBI custody. The next month, agents escorted Barr back to the United States.

Over a year after he returned to the United States, Barr pled guilty to one count of making a false statement to a financial institution, 18 U.S.C. § 1014. The district court accepted Barr’s guilty plea, entered an order finding Barr guilty of the false-statement offense, set Barr’s case for sentencing, and eventually dismissed all other counts.

As Barr began to prepare for his sentencing hearing, he believed documents concerning his detention in Saudi Arabia were relevant; and he believed the government’s failure to produce all those documents was problematic. He accordingly filed a motion in March 2017, seeking discovery of evidence that was "in any way favorable to him or that could lead to such evidence," including additional documents the government had concerning his detention in Saudi Arabia. See Brady v. Maryland , 373 U.S. 83, 87–88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court granted Barr’s discovery motion three days after Barr filed it.

The government then pointed out that some of the requested documents may be classified. As a result, Barr’s counsel underwent a government-clearance process to view the classified material. The government allowed Barr and his attorney to review three classified documents along with additional unclassified material.

Then, in November 2018, Barr’s attorney filed a motion to withdraw because Barr had retained new counsel. Before the district court ruled on that motion, the government turned over more emails concerning the FBI’s attempt to bring Barr back to the United States. The district court allowed Barr to substitute his counsel and delayed the sentencing hearing for another three months. All told, the court continued the sentencing hearing more than ten times.

In January 2019, six days before the scheduled sentencing hearing and three years into the litigation, Barr filed three motions. First, he sought to withdraw his guilty plea, alleging that—due to his counsel’s ineffective assistance—his plea was involuntary. Second, he asked the court to dismiss the indictment because of an alleged Brady violation. Third, Barr asked the court to continue his sentencing hearing so his new counsel could seek government clearance and review the previously disclosed classified documents. The district court denied all three motions.

At the sentencing hearing, the government began by tendering to the court classified documents on an ex parte basis so the court could determine if the documents—concerning Barr’s time in Saudi Arabia—were material for Barr’s sentencing. Barr objected, arguing that his new counsel could not see these documents. The district court granted Barr’s objection, but not in the way Barr wanted: instead of just refusing to view the documents on an ex parte basis, the court decided, "I will totally ignore and not consider whatsoever, in light of your objection, anything that happened to Mr. Barr in Saudi Arabia."

With this decision, the focus of the hearing shifted to which sentence was most appropriate. Barr argued at length that his sentence should take account of his elderly age, lack of prior criminal history, employment history, role as a primary caregiver for his sister, and the sentences of his co-schemers. See 18 U.S.C. § 3553(a).

Then, in violation of the court’s earlier instruction, Barr mentioned his incarceration in Saudi Arabia as a mitigating factor. The district court quickly reminded Barr that it had already ruled it would "completely disregard ... whatever it is that Mr. Barr said occurred in Saudi Arabia." After more back-and-forth with the judge on this revisited topic, Barr’s counsel asked to "gather [his] composure" in a five-minute recess, which the court granted. After returning from the recess, Barr informed the district judge, Judge Norgle, that he would seek the judge’s recusal. Judge Norgle recessed the hearing and asked Barr to have the motion ready the next morning—Barr filed it the same day.

A few weeks later, the district court denied Barr’s motion for recusal and scheduled the remainder of Barr’s sentencing hearing for a few days later. At the continued sentencing hearing, Barr made more arguments for leniency under the sentencing factors listed in 18 U.S.C. § 3553(a). The court calculated Barr’s guidelines range to be 121 to 151 months. Then—noting several mitigating circumstances—the court sentenced Barr to 87 months’ imprisonment, well below the guidelines range.

II. ANALYSIS

Barr raises five issues on appeal. First, he argues the district court committed procedural error by failing to consider Barr’s mitigation argument concerning his time in Saudi Arabia. Second, he argues the district court should have allowed his new counsel time to seek government clearance and to review the classified materials. Third, he argues the district court erred by denying his motion to dismiss the indictment. Fourth, he argues the district court should have allowed Barr to withdraw his guilty plea. And finally, he argues that Judge...