UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WARREN N. BARR, III, Defendant-Appellant.
No. 19-1238
United States Court of Appeals For the Seventh Circuit
ARGUED DECEMBER 4, 2019 — DECIDED MAY 26, 2020
Before MANION, KANNE, and BARRETT, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14-CR-287 — Charles R. Norgle, Judge.
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
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,
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,
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 (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
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
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
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 Norgle was required to recuse himself.
A. Barr‘s Mitigation Argument
In his sentencing memo, Barr quoted language from
(2) adequately deter criminal conduct; (3) protect the public from further crimes of the defendant; and (4) provide the defendant with training, other correctional treatment, or medical care.
Barr argues that the district court committed procedural error by refusing to address this mitigation argument. We review claims of procedural error at sentencing de novo. United States v. Bustos, 912 F.3d 1059, 1062 (7th Cir. 2019).
“While the sentencing guidelines are advisory, the district court must apply the sentencing factors” listed under
In selecting and explaining a sentence, the district court is not required to “comment on every argument the defendant raises.” United States v. Miranda, 505 F.3d 785, 792 (7th Cir. 2007). Arguments without merit “can, and for the sake of judicial economy should, be passed over in silence.” United States v. Cunningham, 429 F.3d 673, 678 (7th Cir. 2005). Still, we expect a district court to address a defendant‘s principal, non-frivolous arguments in mitigation. United States v. Chapman, 694 F.3d 908, 913 (7th Cir. 2012).
defendant relied heavily on a mitigation argument that is factually supported, the record must show that the district court adequately considered the argument. See Chapman, 694 F.3d at 913–14. By contrast, a district court is not required to respond to an inconsequential argument that does not relate to the
Barr has not shown that his time in Saudi Arabia must be considered in order to achieve the legitimate aims of sentencing under
To be sure, it is possible that Barr would not have been jailed in Saudi Arabia had he not committed the offense at issue here: making false statements to a financial institution under
their attempt to extradite Barr. But the record also shows—contrary to Barr‘s argument—that Barr‘s jail time in Saudi Arabia was based on his conduct in Saudi Arabia. Accordingly, that jail time was not a sentence imposed for his fraudulent conduct in the United States.
So, notwithstanding some causal connection between Barr‘s transgressions in the United States and in Saudi Arabia, his conduct in Saudi Arabia was not part of Barr‘s federal offense. And Barr does not present any legal authority supporting his argument that the district court is required to take time served for an unrelated offense in a foreign country into consideration when analyzing “whether a defendant has been already punished for his crime.” (Appellant‘s Br. at 28.) Cf.
In sum, we fail to see how Barr‘s time in Saudi Arabia relates to any of the legitimate aims of sentencing a district court must consider, and Barr has not advanced any arguments to the contrary. He also fails to make any other cognizable attempts to relate his detention in Saudi Arabia to other
Barr also argues that the district court abused its discretion by not allowing additional time for his later-retained counsel to both seek government clearance and review classified documents; he says this decision denied Barr “Due Process of law” by denying “him the full and fair opportunity to mount a defense.” (Appellant‘s Br. at 29.) But Barr has neither provided explanatory reasoning for these assertions nor cited any legal authority in support.
This undeveloped, unsupported argument is waived. Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal authority.“). “It is not our job to do the legal research that [Barr] has omitted.” Bretford Mfg., Inc. v. Smith Sys. Mfg. Corp., 419 F.3d 576, 581 (7th Cir. 2005).
C. Motion to Dismiss Indictment
Barr argued before the district court that the indictment should be dismissed because the government violated its obligation, as recognized in Brady v. Maryland, 373 U.S. 83 (1963), to disclose evidence that is material to guilt or punishment. He specifically asserted that because the government disclosed the relevant documents 20 months late, that delayed disclosure amounted to a violation of due process. He also argued that this violation was exacerbated by the government‘s continued withholding of other documents concerning his time in Saudi Arabia.
The district court disagreed. It held that the later-disclosed documents had not been withheld from Barr until it was too late to use the documents. And even if Barr could demonstrate
the government withheld other evidence, the district court determined that evidence regarding Barr‘s time in Saudi Arabia is not material to his sentencing, and therefore need not be disclosed.
Now Barr argues the district court erred in both aspects of this decision. When reviewing a court‘s decision granting or denying a motion to dismiss an indictment because of an alleged Brady violation, “we look only to see if the district court abused its discretion.” United States v. Cherry, 920 F.3d 1126, 1140 (7th Cir. 2019).
The government violates its Brady obligation only if evidence is suppressed—that is, if the “prosecution failed to disclose the evidence before it was too late for the defendant to make use of the evidence.” United States v. O‘Hara, 301 F.3d 563, 569 (7th Cir. 2002). Delayed disclosure alone does not “in and of itself constitute a Brady violation.” Id. Instead, the disclosure must come so late as to deny the defendant “effective use” of the evidence during the relevant proceeding. United States v. Walton, 217 F.3d 443, 451 (7th Cir. 2000). If a defendant receives relevant evidence—albeit late—and is left with time to make use of it, that evidence has not been suppressed. See, e.g., United States v. Lawson, 810 F.3d 1032, 1043 (7th Cir. 2016) (evidence disclosed mid-trial was not suppressed when the district court gave the defendant five days to review it); O‘Hara, 301 F.3d at 569 (evidence disclosed mid-trial was not suppressed because the district court “appropriately granted a continuance“).
Barr received additional Brady material from the government in November 2018—about 20 months after the district court‘s discovery order. But Barr had ample time to make use of this evidence at his sentencing hearing. After Barr received
the new evidence, the district court granted Barr a continuance of his sentencing hearing, rescheduling it for January 2019. This
Turning to the second aspect of the district court‘s order, Barr argues that the government is still suppressing materials concerning his time in Saudi Arabia. Even if that were true, a Brady violation occurs only if the suppression of evidence is prejudicial to the defendant. United States v. Thomas, 835 F.3d 730, 734 (7th Cir. 2016). And for information to be prejudicial, it must be material: “there must be ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.‘” Id. at 735 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
Barr claims—with no factual support—that the government is withholding evidence regarding his arrest and detention in Saudi Arabia. But, as we have already explained, Barr failed to link his detention in Saudi Arabia for conduct that occurred there to his sentencing for making false statements to a financial institution in Illinois. In short, it was not an abuse of discretion for the district court to hold that there is not a reasonable probability that this allegedly suppressed evidence would have changed the result of Barr‘s sentencing hearing.
Accordingly, the district court did not abuse its discretion in denying Barr‘s motion to dismiss the indictment. As such, the court had no reason to grant an evidentiary hearing to investigate non-existent Brady violations.
D. Motion to Withdraw Guilty Plea
Barr moved to withdraw his guilty plea, arguing that his plea was a result of his counsel‘s ineffective assistance. He alleged that, before he pled guilty, his attorney did not inform him that the government—at sentencing—would have to prove the amount of loss attributable to Barr by only a preponderance of the evidence.
The district court denied this motion. It reasoned that Barr failed to prove both that his counsel‘s performance was objectively unreasonable, and that he would not have pled guilty had he known the correct standard of proof. Barr now argues the district court erred in denying this motion.
We review a district court‘s ruling on a motion to withdraw a guilty plea for an abuse of discretion. United States v. Jansen, 884 F.3d 649, 656 (7th Cir. 2018). And in doing so, we “will uphold a district court‘s factual findings about the existence of a fair or just reason to withdraw the plea unless they are clearly erroneous.” United States v. Chavers, 515 F.3d 722, 724 (7th Cir. 2008).
A defendant‘s right to withdraw a guilty plea is not absolute. United States v. Lundy, 484 F.3d 480, 484 (7th Cir. 2007). “Guilty pleas are not to be treated as a strategic maneuver by the parties, and we presume the verity of the defendant‘s statements made at a
Here, Barr has failed to show prejudice—that he would not have pled guilty had his counsel informed him of the correct burden of proof regarding the loss amount. We do not “upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney‘s deficiencies.” Lee v. United States, 137 S. Ct. 1958, 1967 (2017). But post hoc assertions are all that Barr has provided. In support of his motion to withdraw his plea, Barr submitted a post-sentencing affidavit that claims he pled guilty because of his mistaken belief that the government would have to prove his loss amount beyond a reasonable doubt. He has not produced any other evidence—let alone evidence contemporaneous with his guilty plea—that suggests he would not have pled guilty, had he known of the government‘s burden. Cf. United States v. Delhorno, 915 F.3d 449, 454 (7th Cir. 2019).
As a result, he has not shown prejudice, as required to upset a guilty plea on ineffective-assistance grounds.
Finally, Barr asserts, as a standalone “fair and just” reason to withdraw his plea, his “wrongly held belief” that the government would have to prove loss amount beyond a reasonable doubt. (Appellant‘s Br. at 37.) The district court, however, determined that Barr did not demonstrate a fair and just reason to withdraw his guilty plea—in part because at the change-of-plea hearing Barr did not dispute the recitation of facts in his plea agreement.
On appeal, Barr does not contest the validity of the statements he made during his
Essentially, Barr thought the government would not be able to prove as much loss, which would have produced a lower guidelines range. In this way, Barr‘s argument is just another way of saying that he underestimated his sentence when entering his plea; and that—we have recognized—is not a fair and just reason to withdraw a guilty plea. See United States v. Redmond, 667 F.3d 863, 872 (7th Cir. 2012); United States v. Bowlin, 534 F.3d 654, 660 (7th Cir. 2008) (“A mistake about the substantive offense goes to the heart of the guilty plea; a mistake about the possible sentence … does not.“).
So, Barr “presented no legitimate reason to withdraw his plea,” Redmond, 667 F.3d at 874, and the district court did not abuse its discretion by denying Barr‘s motion.
E. Motion for Recusal
Finally, Barr takes issue with Judge Norgle‘s refusal to recuse himself under
1. Section 144
Section 144 requires the recusal of a district judge if “a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party.”
Recusal is mandatory under
Barr argues that he satisfied the requirements of
counsel never filed a certificate, as required, stating that Barr‘s affidavit was filed in good faith. And on appeal, Barr does not contest this failing. By not filing the required certificate, Barr and his counsel failed to comply with the procedural demands of
2. Section 455(a)
Section 455(a) provides that a district judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
To obtain a judge‘s recusal under
Barr believes the district court‘s conduct created an appearance of bias against him and his attorney. He argues the appearance of bias stems from his attorney‘s involvement in another case, United States v. Mohsin, 904 F.3d 580 (7th Cir. 2018). Barr‘s counsel appeared before Judge Norgle at least once during Mohsin‘s district court proceedings. Barr‘s counsel was then involved in Mohsin‘s appeal, which resulted in Mohsin‘s sentence being vacated and remanded for resentencing by a different district judge. Id. at 586.
Barr now claims that Judge Norgle‘s removal from the Mohsin case caused him to be hostile toward Barr‘s counsel. To show that Judge Norgle treated Barr‘s counsel less favorably than the Assistant United States Attorneys, Barr points to
We disagree. It is hard to see how a reasonable, well-informed observer would question Judge Norgle‘s impartiality because he had a sentencing decision overturned in a case involving Barr‘s attorney. The overturned sentence in Mohsin‘s case has nothing to do with Barr‘s sentencing hearing. Adopting Barr‘s reasoning would require us to believe that federal judges hold grudges against all attorneys who are involved in any case in which the district judge‘s decision gets reversed on appeal. And critically, it would also require us to believe that district judges respond to that grudge by demonstrating unfairness toward those attorneys and their clients. We will not assign such a petty disposition to federal judges. See generally Code of Conduct for United States Judges Canon 3, available at https://www.uscourts.gov/file/document/code-conduct-us-judges-effective-march-12-2019 (“A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently“).
Simply put, Barr asks us to view this case through the lens of a “hypersensitive or unduly suspicious person” rather than a “well-informed, thoughtful observer.” In re Mason, 916 F.2d 384, 386 (7th Cir. 1990). We refuse to do so, and instead hold
that there was no reason for Judge Norgle to recuse himself under
3. Section 455(b)(1)
Section 455(b)(1) provides that a district judge shall recuse himself “[w]here he has a personal bias or prejudice concerning a party.”
Under
Barr reiterates that the district judge‘s bias here originates from Barr‘s counsel‘s involvement in Mohsin. And, like for his argument under
conduct. This conduct includes repeatedly “interrupting,” making comments about, and “raising his voice” to counsel, and “threatening consequences” if counsel “uttered particular words again.” Barr reasons that this harsh
Barr first fails to show that any of Judge Norgle‘s frustrations originated from an extrajudicial source. Judge Norgle stated he was “completely unaware of [Barr‘s counsel‘s] existence prior to his appearance in this case.” And, more importantly, the source of Judge Norgle‘s frustration is clear from the record: Judge Norgle identified counsel‘s behavior as “repeated obfuscations and attempts to fence with the [c]ourt.”
Nor does this conduct establish personal bias or prejudice under
Barr‘s argument about Judge Norgle‘s “threatened consequences” likewise lacks force. At the beginning of Barr‘s sentencing hearing, Judge Norgle instructed Barr‘s counsel that he would not be allowed to mention Barr‘s time in Saudi Arabia for any reason. But Barr‘s counsel struggled to follow this instruction. Judge Norgle‘s warnings and expressions of dissatisfaction with this disobedience “were in direct response to
[Barr‘s] repeated disregard” for the district court‘s prior instruction. Id. And “[e]ffective case management sometimes calls for such warnings to avoid … distraction from the principal issues.” In re City of Milwaukee, 788 F.3d 717, 723 (7th Cir. 2015). In response to counsel‘s attempt to subvert a district court instruction, Judge Norgle‘s warnings—perceived by Barr as “threatened consequences“—were necessary to keep the sentencing hearing on track. This again is case management and does not warrant recusal.
In sum, Barr complains about the manner in which Judge Norgle managed his courtroom. But Barr has not shown that Judge Norgle‘s frustration originated from a source other than his own attorney‘s behavior during the hearings. And Judge Norgle‘s conduct does not “demonstrate evidence of personal animosity or malice, which is necessary to succeed on a Section 455(b)(1) motion.” Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir. 2000). Judge Norgle was thus not required to recuse himself under
4. Seeking Government Input
Barr also argues that the district court erred by seeking the government‘s input regarding Barr‘s recusal motion. He believes that his motion should have been granted for this reason alone. The district court, citing In re National Union Fire Insurance Co., 839 F.2d 1226 (7th Cir. 1988), rejected Barr‘s argument that seeking the government‘s input is a reason to summarily grant a motion for recusal. We review this legal conclusion de novo. See Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 307 (7th Cir. 2002).
Barr specifically relies on two sentences in In re National Union Fire Insurance Co., 839 F.2d 1226 (7th Cir. 1988), for his
argument. First, we stated that “[j]udges should refrain from asking for the views of counsel on” questions of recusal. Id. at 1231. Second, in support of this statement, we quoted Resolution L of the 1971 Judicial Conference, which provides: “In all cases involving actual, potential, probable or possible conflicts of interests, a federal judge should reach his own determination
However, Barr fails to acknowledge that we went on to hold that “[a]ny transgression against the policies underlying Resolution L is not itself a ground of disqualification.” Id. A party may decline to provide input on the ground that it was “inappropriate for the court to solicit the parties’ views” regarding recusal. In re United States, 572 F.3d 301, 307 (7th Cir. 2009). But a party‘s input is not an automatic ground for recusal. See In re Nat‘l Union Fire Ins. Co., 839 F.2d at 1231. Although we reiterate our admonition that a judge should not ask for the views of counsel on questions of recusal, the judge‘s doing so is not grounds for finding prejudice. Barr misreads In re National Union Fire Insurance Co., and his argument, in the face of the facts in this case and the law, is without merit.
III. CONCLUSION
Barr alleges a long list of errors and requests that we vacate his conviction and sentence or remand his case for resentencing by a different district judge. But we find no error in
the district court‘s handling of this case. We therefore AFFIRM Barr‘s conviction, sentence, and the district court‘s order denying Barr‘s motion for recusal.