United States v. Warren Barr, III
960 F.3d 906
7th Cir.2020Background
- Warren Barr, a partner in 13th & State, was charged in 2014 with bank fraud and making false statements to a financial institution related to sales at the Vision on State condominium project.
- At the time the federal warrant issued, Barr was living in Saudi Arabia; FBI sought his return (including an Interpol red notice), but Saudi authorities arrested and detained him on separate debt-related charges for ~6 months.
- Saudi authorities transferred Barr to FBI custody in early 2015; he returned to the U.S., pled guilty to one count under 18 U.S.C. § 1014, and other counts were dismissed.
- Barr sought Brady discovery about his Saudi detention; the court produced some materials (including classified documents reviewed under government clearance), and the sentencing was continued multiple times to allow counsel substitution and review.
- Six days before sentencing Barr moved to withdraw his plea (ineffective assistance), to dismiss the indictment (Brady violation), and to continue sentencing so new counsel could obtain clearance to review classified materials; the district court denied all three motions and excluded consideration of Barr’s Saudi detention at sentencing.
- Barr mentioned his Saudi detention at sentencing despite the exclusion; he later moved for Judge Norgle’s recusal; the motion was denied and Barr was sentenced to 87 months (below the Guidelines). He appeals raising five issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court procedurally erred by refusing to consider Barr’s Saudi detention as mitigation under 18 U.S.C. § 3553(a) | Barr: His Saudi detention means additional U.S. incarceration would be greater than necessary; the court should consider time already spent detained. | Govt/District: Saudi detention was for separate, non-U.S. conduct (debts), not punishment for the U.S. offense, and Barr failed to show how it relates to § 3553(a) factors. | Affirmed: Court need not consider unrelated foreign detention as mitigation; Barr didn’t link it to § 3553(a) goals. |
| Whether the court abused discretion by denying extra time for new counsel to obtain security clearance and review classified materials | Barr: New counsel needed clearance to meaningfully review disclosed classified materials before sentencing (due process). | Govt/District: Argument undeveloped and unsupported; record shows multiple continuances and counsel had time; issues waived. | Affirmed: Argument waived for lack of development; no abuse shown. |
| Whether the indictment should be dismissed for Brady violations (late or withheld disclosure) | Barr: Government disclosed Brady material 20 months late and continued to withhold other Saudi-related materials, prejudicing his sentencing. | Govt/District: Late disclosure was not suppressed because the court granted continuances and Barr had time to use the evidence; withheld Saudi material is not material to sentencing. | Affirmed: No Brady violation; delayed disclosure was not untimely to preclude use and allegedly withheld material was not shown to be material. |
| Whether Barr could withdraw his guilty plea based on ineffective assistance (misunderstanding of burden to prove loss amount) | Barr: Counsel failed to advise that loss amount at sentencing is proved by preponderance, so plea was uninformed and involuntary. | Govt/District: Barr failed to show counsel’s performance was objectively unreasonable or that he would not have pled guilty but for the alleged deficiency; statements at Rule 11 support voluntariness. | Affirmed: No prejudice shown; post hoc affidavit insufficient; mistaken sentencing expectation is not a fair and just reason. |
| Whether Judge Norgle should have recused under 28 U.S.C. §§ 144, 455(a), 455(b)(1) | Barr: Judge showed bias against Barr’s counsel (hostile interruptions, warnings) possibly stemming from counsel’s role in an earlier reversed case; court solicited government input on recusal. | Govt/District: Procedural defects in § 144 filing (no certificate of good faith); judge’s conduct was courtroom management, not extrajudicial bias; soliciting views isn’t automatic disqualification. | Affirmed: § 144 defective for missing certificate; no appearance of partiality under § 455(a); no demonstrable personal bias under § 455(b)(1); soliciting government views not grounds for recusal. |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose evidence material to guilt or punishment)
- United States v. O'Hara, 301 F.3d 563 (7th Cir. 2002) (delayed disclosure is Brady only if it precludes effective use)
- United States v. Walton, 217 F.3d 443 (7th Cir. 2000) (late disclosure not suppressed where defendant had time to use evidence)
- United States v. Bagley, 473 U.S. 667 (1985) (Brady materiality standard: reasonable probability of different result)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test)
- Liteky v. United States, 510 U.S. 540 (1994) (judicial remarks ordinarily insufficient to show bias unless from extrajudicial source)
- In re Nat'l Union Fire Ins. Co., 839 F.2d 1226 (7th Cir. 1988) (court should reach its own recusal determination; soliciting views not automatic disqualification)
- United States v. Lundy, 484 F.3d 480 (7th Cir. 2007) (standards for withdrawing a guilty plea)