United States v. Warner
| Decision Date | 08 February 2021 |
| Docket Number | Case No. 20-1148 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES WARNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
COLE, Chief Judge. James Warner appeals his conviction at trial on ten counts stemming from kickback schemes he engaged in while working at two public agencies in the Detroit area. Shortly before trial, the district court denied Warner's request for an emergency continuance due to his lead counsel's growing back pain. On appeal, Warner argues that the denial jeopardized his Sixth Amendment right to counsel of choice and was thus an abuse of discretion. He also claims that the jury instructions constructively amended his indictment and were so confusing as to constitute plain error. We disagree and affirm Warner's convictions on all counts.
From at least 2010 to 2017, James Warner engaged in corrupt kickback schemes with three contractors under his supervision while employed at the Wayne County Airport Authority (WCAA) and the West Bloomfield Township Water & Sewerage Department. Warner's schemes consisted of supplying the contractors with confidential information to help them win bids with his employers and approving the contractors' inflated invoices for work they did not perform, sometimes even creating the false invoices himself. In return, the contractors paid a cut of their earnings under their contracts back to Warner. In total, Warner received more than $5 million in kickbacks. After an internal audit at WCAA uncovered irregularities in one of the contractors' invoices, the FBI worked with that contractor to record Warner engaging in a similar kickback scheme at the Water & Sewerage Department. When the FBI interviewed Warner in May 2017, he admitted to receiving "bribes" from two of the contractors.
In May 2018, Warner was indicted for this conduct. In January 2019, prosecutors filed a revised ten-count indictment charging Warner with federal program bribery (18 U.S.C. § 666(a)(1)(B), (a)(2)), theft from a federally funded program (§ 666(a)(1)(A)), conspiracy (§ 371) to do the same, conspiracy to commit money laundering (§ 371; § 1956(h)), and obstruction of justice (§ 1519).
Warner retained Robert Harrison to represent him, with Harrison's younger associate, Nicholas Galea, as additional counsel. Primarily because of substantial discovery, the district court granted three continuances delaying trial until May 2019. One of those continuances was partially due to Harrison's health complications from back surgery earlier that year. At an April 9, 2019, status conference discussing possible trial dates, it became apparent that Harrison's, the prosecutors', and the district court's busy schedules left May 2019 as the only opening for Warner's trial if it was to happen any time before fall. The court indicated that the trial would likely consist only of half days. Eventually, the trial was scheduled for May 21.
On May 15, Harrison informed the court by e-mail that he was experiencing increased back pain from his unsuccessful surgery and shared that he would likely need some physical accommodations at trial. Harrison made clear he was not seeking a continuance and made no mention of Warner seeking additional counsel. The next day, the district court notified the parties that trial must conclude by June 5, and that it would likely require some full days. Later that day, Harrison responded that his back pain prevented him from participating in full days of trial. He thus "believe[d] that the best solution is an adjournment" and wrote that he would seek additional counsel to assist him if the trial was adjourned. The court responded that if Harrison was seeking a continuance, he should file a motion.
On May 17, four days before trial, Harrison filed a motion to continue, arguing that the court's proposed schedule was an "impossibility" for him because he "could not endure" full days of testimony, among other reasons why the continuance was warranted. The motion did not mention Warner's desire to retain additional counsel. The district court denied the motion later that day, primarily concluding that the logistical difficulties of rescheduling the trial at such a late hour weighed against a continuance. The order noted, however, that the court would "extend whatever courtesy Mr. Harrison requires in the courtroom to address his pain and fatigue issues" and offered a new alternative trial schedule consisting entirely of half days, though with a one-week break in the middle. For reasons not stated in the record, the parties proceeded with the original schedule of nine days of trial from May 21 to June 5.
Harrison participated as lead counsel throughout, conducting voir dire questioning; delivering opening and closing statements; handling the cross-examination of all government witnesses, including two co-conspirator contractors, and the direct examination of Warner; and arguing against the government's motion to remand. The jury convicted Warner on all ten counts.Warner moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure, which the district court denied, and then for reconsideration, which the court again denied. Warner timely appealed to this court.
Before us, Warner argues that the denials of motions for a continuance, for a new trial, and for reconsideration were abuses of discretion because the continuance jeopardized his Sixth Amendment right to counsel of choice, both with regard to existing counsel and to additional counsel, and because the court failed to inquire further into the extent of his counsel's physical impairment. For the first time on appeal he also claims that his jury instructions were problematically confusing and that they constructively amended his indictment on Counts One, Five, and Seven.
We review a denial of a motion to continue for abuse of discretion. United States v. King, 127 F.3d 483, 486 (6th Cir. 1997) (citing Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). When affecting a defendant's choice of counsel, "an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to assistance of counsel." Abby v. Howe, 742 F.3d 221, 227 (6th Cir. 2014) (quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983)) (internal quotation marks omitted). This analysis depends on "the circumstances present in every case, particularly [on] the reasons presented to the trial judge at the time the request is denied." See Ungar, 376 U.S. at 589.
Warner argues that the denial of the continuance jeopardized his Sixth Amendment right to counsel of choice because it forced Harrison to represent Warner while physically impaired. Warner points to no authority, however, holding that this right is implicated when the defendant's chosen counsel actually represents him at trial, albeit under constrained circumstances. Indeed, in every case Warner relies on, the defendant was entirely denied representation by his counsel of choice. See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 142-43, 152 (2006) (); see also Linton v. Perini, 656 F.2d 207, 208, 212 (6th Cir. 1981), superseded by statute as recognized by Burton v. Renico, 391 F.3d 764, 771 n.2 (6th Cir. 2004); United States v. Sellers, 645 F.3d 830, 832-34 (7th Cir. 2011).
Alternatively, Warner appears to imply he was denied counsel of choice because Harrison was so impaired at trial that his representation was reduced to being a "sham." Cf. Appellant Br. at 35 (quoting Avery v. Alabama, 308 U.S. 444, 446 (1940)). But nothing of the sort occurred here. The trial transcripts demonstrate that at every turn, whether at voir dire, opening statements, direct and cross-examination of witnesses, or closing arguments, Harrison meaningfully challenged the prosecution's case. Warner's bare assertions that Harrison's back pain impaired his memory, focus, and "meaningful connection" with the jury do not suffice to demonstrate that his representation was a sham.
In short, Warner's claim "confuse[s] the right to counsel of choice—which is the right to a particular lawyer regardless of comparative effectiveness—with the right to effective counsel." Cf. Gonzalez-Lopez, 548 U.S. at 148. Because Warner's chosen counsel represented him throughout trial, the proper inquiry should rather be whether this impaired representationconstituted ineffective assistance of counsel. But Warner disavows any argument that his counsel was ineffective. Thus, Warner's Sixth Amendment argument regarding Harrison has no foundation, and his abuse of discretion claim falls with it.
Warner further claims that the denial of a continuance arbitrarily jeopardized his right to seek additional counsel of choice. But even assuming that the Sixth Amendment secures the right to multiple counsel of choice (a question we have yet to settle, see Abby, 742 F.3d at 227) and setting aside Warner's silence regarding additional counsel in his motion proper, the denial was not an abuse of discretion.
Harrison's one, informal reference (in his May 16 e-mail), to the possibility of seeking additional counsel was grounded in concerns that he was physically unable to participate in full trial days. The district court then directly addressed this concern in its denial of the motion to continue, offering Harrison any physical accommodations he required and proposing a new trial schedule that consisted only of half days. Moreover, several other factors reasonably...
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