*1 pension benefits under plan.
Moreover, the Court did not renounce but holding
instead reiterated the of both Hi
ney and VanderKlok. Id.
Relying upon the case law and the fact
that Gore requested plan materials from
Liberty though even El Paso was the ex- plan
clusive administrator according to
bоth Summary Plan Description and parties’ stipulation in the initial case order,
management we conclude the dis-
trict court did not abuse its discretion it impose
when declined to penalties civil 1132(c).
pursuant §to
V. Conclusion
The decision of the lower court RE- is
VERSED IN PART and AFFIRMED IN
PART. The case shall be REMANDED 1132(a)(3) §
and Plaintiffs claim of breach
of fiduciary duty against El Paso shall be
REINSTATED. The district court’s deci-
sion dismissing Plaintiffs claim for civil
penalties against El Paso for failure to
provide plan information to a participant, 1024(b)(4)
pursuant 1132(c) §to §
AFFIRMED.
UNITED America, STATES of
Plaintiff-Appellee, Henry
William BARNWELL,
Defendant-Appellant.
No. 04-2143.
United States Appeals, Court of
Sixth Circuit.
Argued: April 2006.
Decided and Filed: Feb. *2 I. Appellant. Walter
Hills, for Michigan, Attorney, Kozar, United States Assistant Detroit, Appellee. for Michigan, MERRITT, KEITH, Before DAUGHTREY, Judges. Circuit J., opinion KEITH, delivered MERRITT, J., joined. court, in which 854), DAUGHTREY, delivered (p. J. dissenting opinion. separate OPINION KEITH, Judge. Circuit Barnwell, Defendant, Henry William trial in in his second was convicted for Court States District the United for Michigan embezzle- District of Eastern assets, in union theft of labor 501(c); § and con- 29 U.S.C. violation misappropriation engage spiracy U.S.C. assets, in violation union his convictions appeals Barnwell § 371. trial be- a new for remand requests improper cаuse prosecution between his trial violated during first and ef- process to due right constitutional rea- For the of counsel. assistance fective Barn- below, REVERSE we set forth sons a new for REMAND convictions well’s trial.
I. in- Barnwell January On Ny- Edwin others: along with four dicted Williamson, Williamson, David hus, Sandra four-count Jackson. and Charles four and his charged Barnwell dictment misappropriating co-defendants Re- union, Michigan labor assets (“MRCC” or of Carpenters gional Council Weiss, Farming- Jay Arthur ARGUED: salaries, allow- “Union”), in the form Walter Appellant. Michigan, for Hills, ton to or on paid ances, fringe benefits Attor- States Kozar, Assistant I. rep- business number of of a Union behalf ON Detroit, Appellee. Michigan, ney, (“Business who Agents”) Weiss, Farmington resentatives Jay Arthur BRIEF: worked on the construction of a new home charge of the carpentry local, residential for Mr. during and Mrs. Williamson Union Local ordered three Agents Business time, work in violation of 29 U.S.C. under his supervision to assist the William- 501(c); § conspiracy and with engage sons the construction of their new home. misappropriation assets, of Union contends, however, that he *3 § violation of Additionally, 18 U.S.C. 371. “asked” the Agents Business to “volun- in count indictment, three and four of the teer” and “donate” their assistance to the Mrs. Williamson and Jackson were both Williamsons in “rough framing” their resi- charged making with false statements to dence. The Williamsons also obtained free agents, federal in violation of 18 U.S.C. labor from 1001(a)(2). personal their § friends who worked weekends and after normal work- Background A. ing addition, hours. In Mr. Williamson used equipment from October co-defendants Mr. business associ- Mrs. ates at began Williamson construction on a cost. Barnwell’s Business new house in St. County, Michigan. Clair Agents Benoit, Beever, Mark —William construction, At the time of Mrs. William- and Patrick Lindstrom —did work not on son was employed personal as the secre- the same after-hours schedule as Wil- tary tо Mabry, William the Executive Sec- personal liamsons’ Instead, friends. retary-Treasurer of the MRCC. She was worked on the Williamson during house the highest paid employee clerical hours, normal working three days per MRCC. Although she employed was by the week for a period of four to five weeks. Union, she was not a member. Her hus- The Agents Business never leave at took band, Williamson, Mr. awas Business anytime and continued to receive their Agent with union, a different Local 324 of regular compensation including salaries, the International Union of Operating En- allowances, and other fringe benefits from gineers. the Union. days On the thеy worked at The Williamsons contracted a Ca- site, Williamson home construction nadian company prefabricated to obtain they did not any job visit other sites. Ad- construction materials to build their house. ditionally, at no time did the Williamsons panels, The which were specifi- ordered to pay them for their work. cation, did fit properly. Allegedly, the Barnwell and his co-defendants argued supplier Canadian went out of business at trial they had good acted with a faith before it could cure its error. put This belief that the Union’s constitution and Williamsons in a difficult position. The bylaws1 provided for the type gratu- Government оf contends that the Williamsons itous decided to services problem solve their that by Agents obtain- Business ing rough free carpentry rendered. Alternatively, labor from the argued MRCC. In 1997, Barnwell, December supplied who labor by his Business was the Director of the MRCC and Agents actually benefited the Union due 1. Section 2 Bylaws of Union reads: among Brotherhood, the members of this assist object our procuring of members in employ- this Council pro- be to shall protect mote protect and to by our legal of interest our mem- members bership, encourage proper against apprenticeship injustice means system skill, higher may them, standard of to re- done to improve and to labor, moral, duce social, the hours of adequate to secure and intellectual conditions of work, pay for our to elevate the standard of our (J.A. member working people. and all craft, our to cultivate feeling friendship Wiretapped Conversation B. the Un- between goodwill increased to the union, Local Mr. Williamson’s ion and on the eve- p.m. 8:19 approximately At deliberations, day first ning of the his four of Barnwell The first Investigation the Federal Bureau Tuesday, Septem- began co-defendants mat- (“FBI”), and unrelated separate in a District 2003, in United States ber using a ter, telephone intercepted a call— Michi- District of the Eastern for Court in the authorized wiretap district September gan. On who two individuals case—between instant Bufalino, coun- that William court learned subject investigation Williamson, too and Mrs. sel for Mr. ongo- had been contends the Government trial. On Mon- to continue sick targets years. The nearly ing fifteen *4 22, request at the day, September down- trial of “our friend” the discussed continuing to the and due the Williamsons had town, that a woman indicated counsel, the court severed of their illness to 4 for vote was them that the advised a mistrial as and declared the had shifted Williamsons but point, at one conviction The trial contin- acquittal, defendants. to to these two towards two remaining his Barnwell and to ued as Ex Parte Communications C. On co-defendants, and Jackson. Nyhus 10, 2003, Assistant rested, Friday, the 2003, On October both sides October (“AUSA”) Keith Attorney States closing arguments jury heard day the next the message with a voicemail left Corbett the from final instructions and received case, that indicating in the instant judge began, jury Before deliberations court. that he need- issue important there was court, juror, open judge trial asked the morning. judge that with the to discuss ed plans to Florida. paid vacation about Thereafter, invited AUSAs Cor- the judge planning that he was juror responded The Gershel,2 FBI along Alan bett and (three the days from Sunday on to leave Fischetti, to discuss Agent Louis Special deliberations). judge The jury start “ap- that wiretapped conversation the they would have jury that the advised judge] was [the a case part to be peared through the weekend hours and work late (Sealed Tr. Oct. trying.” currently of the plans the vacation accommodate matter, the discussing the After however, them, to rush warning juror, the conversation put judge decided to a decision. time, the At Government this the record. (1) was the that Barnwell’s trial only the began, knew Shortly after deliberations court in the federal case only criminal requesting the court a note to jury sent (2) the stage jury the deliberation of three wit- transcripts testimony the Macomb from in the were case defendants matter with discussing the nesses. After by the captured County like the individuals jury’s court refused parties, wiretap. their mem- rely on asking them to request, portion for the re- During the off-the-record jury deliberated ories. The Gershel judge, AUSA with the meeting then retired day and mainder of judge interview recommended night. meeting was meeting and the fact were the trial nor Corbett Gershel 2. Neither did trial counsel taking place. instant Barnwell's attorneys for the Government did, attorney case. Government's not. The however, surrounding know of events jury foreperson on the record determine bett that he would first jury’s answer the the status of the vote. The judge agreed note, second consult with some people, and proposal this and told the Government get then back to him. I on, “[a]s soon as know what’s going At approximately a.m., 10:00 the judge your we’ll call office.” Id. at 5. consulted with parties all of the in open judge Before the could meet with the court about how to handle jury’s sec- jury foreрerson, jury sent a second ond note. At point, this AUSA Walter requesting note testimony transcripts (the Kozar lawyer Government’s trial eight Thereafter, witnesses. more un- case) fully known to defense the judge met formed of early morning developments. jury with the foreperson to determine attorneys Kelley, Rob- —Peter whether the intercepted phone call related Forrest, ert and Arthur Weiss—were not. to the instant case. The in camera Both presented sides arguments about foreperson asked the whether there was a how to jury’s handle the second note. The and, so, vote if what the numerical break- Government’s position was to tell the down was of that vote. did not to use their memory give and not them the ask way which the vote was leaning. The transcripts (J.A. testimony. provided information proved to be incon- 650-54.) Barnwell’s expressed *5 clusive, as foreperson the said there was some concern with this approach, sensing an 4 never 8 to vote and the vote was 11 to jury’s problem with recalling testi- 1, not 10 to 2. The judge informed the monies greater was than judge what the foreperson that he would answer the jury’s the Government had suspected. The court second shortly note keep to their agreed with the position, Govеrnment’s meeting confidential. and then informed counsel jury that the After interviewing foreperson, the the will going be lunch early to day that be- judge telephoned Corbett and advised him (J.A. cause “it up messes the marshals.” at of the results. Accordingly, Corbett told 654.) the judge that “I’m not going to take Immediately following open the court further action.” Id. at judge 8. The then meeting counsel, with all the trial judge suggestion made a to assist prosecu- the again met ex parte with tion’s Gershel and efforts. Cor- Specifically, he asked Cor- bett, bett. The judge I was under give impression “What if an the opportunity for that somebody jury the perhaps gоing was phone? hung, use the It’s be- a concern no cause the that stone be left vote was to 1. unturned.” It was his judge continued, Id. The “I’ll assumption send them to that the lone dissenting vote [early]. lunch If going she’s to do partial juror. some- the judge The informed thing, you’ll kind of have it.” Id. the AUSAs way that “the I’m thinking it is (sic), we are going to get a note something
After Corbett concluded this conversa- they’re like hung which is way the to do it. tion with judge, the he met with the Gov- I think important it’s not to ernment’s disclose or attorney trial and FBI agents, have anybody think giving about them the wire- the details of the ex parte ” (Sealed 10.) .... tap Tr. throughout judge the The also morning. During suggested this meeting, agent dismissing partial juror. the identified one of the The deliberating jurors as responded by the sister Government saying of one of wiretapped the targets. flip “Let’s Corbett coin you get [see] if telephoned judge the and informed him of conviction on some the defendants.” Id. this development. judge The advised Cor- at 11. Although no consensus could be Thereafter, jury go the judge told the meeting, Government the at the reached the case. think more about judge back lunch and call the they would that agreed judge concluded trial The 1:00 p.m. around lunch, a fourth note jury the sent After it’s “I think stating that meeting by judge. The requesting see the ” Id. at jointly. that we do important jury to write asking note reply wrote added). (emphasis to dis- what wanted the substance a.m., 11:20 approximately At fifth and with a jury responded cuss. judge. note, to see the asking third sent a “Jury hung with stating, final note to dis- reconvened was thereafter Court (sic) de- coming a unanimous possibility judge and Gov- Again, cuss the note. at cision.” Id. fully aware counsel ernment’s throughout note to all transpiring publishing been After what had continued their counsel counsel for morning, defense asked while began time, The Government Still, only uninformed. to be views. “con- it was by stating hearing aware of counsel were and Government into jury] bringing [the about cern[ed] meetings and the substance going what’s we don’t know court because had not Defense counsel meetings. those (J.A. at point....” to come out meet- the ex parte informed of yet been Govern- judge agreed with The trial jurors, corrupt any potentially ings, bringing suggested counsel recorded wiretap, or the existence chambers, De- in camera. into foreperson targets. the two conversation between objected to vigorously fense counsel “jury stated that (sic) decision, “there’s stating that judge’s at 661. hung.” Id. allowed to be should be It’s jurors. to deal ways historical Barn- concurred Nyhus Counsel (siс) court, respond *6 always open in for was Jackson counsel. Counsel well’s Id. at all see.” so we can and forth back charge. Govern- Allen of a modified favor decided, the de- over 655-56. The to the dis- the decision counsel left in foreperson to see the objections, fense’s judge agreed court. The of the cretion it on the camera, put “I will stating that Nyhus and of Barnwell with the counsel opportunity an record, have you and will jury of the possibility to seal a reason If there’s the records. see Counsel decision. a unanimous coming to to seal it, If no reason I’ll there’s seal it. court suggested for Jackson it, response, Id. I won’t....” consider jury would whether the quire into just “if I for could counsel stated wishing partial verdict. Not returning whole record, bring in the you whether returning a verdict in jury to coerce really I think just foreperson, jury or otherwise), denied the court (partial Court, it should respect to with all due inten- its then stated The court request. court, and counsel in with clients done mistrial. tion to declare a at 656. present.” Id. jury requested that counsel Defense to meet judge proceeded At discharged. publically polled be camera, on the but jury foreperson, counsel, the request of Government havе “We foreperson stated: record. The refused, going stating that “I’m on her decision. hell bent person one that’s We There’s no reason. them in. bring her back to bring the law We wanted 666. De- Id. signed.” have the notes (sic), defensive. got but she with the book compromise, As a objected. fense change her going she’s I don’t think public having acquiesced the court at 657. her decision.” opinion and 850
discharge, although
attorneys
were not
government agents. We hold that these
poll
allowed to
them.3
parte
ex
communications violated Barn-
well’s constitutionally prescribed rights to
D. Retrial
process,
due
effective assistance of
retrial,
Prior to
scheduled
the court
by
and trial
impartial judge
an
jury.
denied Barnwell and his co-defendants’
The due process clause of the Fifth
post-trial
judgment
motions for
acquit-
Amendment grants criminal defendants
Also,
retrial,
tal.
prior to the
the Govern-
the “right to
present
be
stages
all
ment voluntarily dismissed
charges
all
the trial where his
might
absence
frus-
against Nyhus; and the court entered an
trate the fairness of the proceedings!!.]”
Jackson,
severing
order
so that Jackson
California,
Faretta v.
806,
422 U.S.
820 n.
could pursue
interlocutory appeal.
15,
2525,
95 S.Ct.
(1975);
45 L.Ed.2d 562
Barnwell,
The retrial of
together with
Cronic,
United States v.
648,
466 U.S.
659
Williamson,
Mr. and Mrs.
began on April
25,
n.
2039,
104 S.Ct.
On appeal, (quoting In Taylor, asks this Court re 1183, to 567 F.2d 1188 grant (2d him a new trial Cir.1977)); based on five ex v. Ar States cf. parte meetings and (2d communications royо-Angulo, 1137, be- 580 F.2d 1145 Cir. tween the trial judge, prosecution, 1978) (Closed proceedings fraught “are During arguments, 3. oral (Keith, J., defense counsel in- 524 n. dissenting). 1 This is nei- formed this Court—and Government counsel controlling ther correct nor panel "a because dispute did not there had been no for- may of this court not previous a —that overrule investigation mal charges brought against or panel's (sic) Only decision. en banc court suspected partial juror any party other may overrule precedent, a circuit absent an regard (Oral tampering. Arg. to intervening Supreme Court decision.” Meeks 9:02-10, 28, (audio April 2006 recording).) R.R., v. Illinois Central 738 F.2d Gulf (6th Cir.1984); 751 see also v. United Smith Carmichael, Seivice, In United States v. (6th 232 States F.3d 510 Postal 766 F.2d (6th Cir.2000), majority suggested 1985). Therefore, that the Cir. Minsky, as held in only Government show need a reasonable ar- Government have "compelling must a state justification ticulable parte for an ex confer interest” to parte ex conduct communications ence with Government counsel. See id. at prosecution. with the Notwithstanding, these and, absent abuse potential avoided.”). narrowly tailored meet were not necessity, must
compelling record The in state interest. compelling heavy a burden bears The Government invita- open had an that the shows AUSAs preju- was not that the defendant showing judge as meet with the contact and from tion to was excluded his counsel when diced necessary. Re- F.2d much as deemed Minsky, 968 these communications. attorney left markably, one Government court con- district Minsky, at 874. number, just case the phone his cell review certain camera an in ducted him at his office. not judge could reach conver- materials, parte an ex followed (Sealed 12.) parte If ex communica- Tr. nor the defendant sation, which neither all, they must are to be allowed On tions participate. were able his counsel than the extent no further continue did the Government held that we appeal, absolutely necessary to they are re- which state interest compelling a not show compelling interest. the state’s protect conversa- parte ex private these quiring case, the Likewise, in the instant tions. persuasive case more makes this What burden. to meet its fails Government in addition to Minsky is that than substance knowing the counsel not defense Government, general vague The communications, they had parte ex of these parte com- terms, five ex that its contends these communications knowledge necessary protect the were munications during oral As stated taking place. were “completely in a wiretap aof existence were counsel arguments, Barnwell’s “on- case,” part of an which was unrelated (Oral in the dark.” kept ... “mushrooms (Oral Arg. investigation.” criminal going 10:17-18; Br. Arg. Appellant’s (audio 12:08-12:12, record- April AUSAs, FBI judge, trial we were investigation, ongoing ing).) This on a mo- each other agents updating allegedly argument, during oral told only was Not ment-by-moment basis. extortion, and illegal gambling, volved conversations between parte fluid ex could counsel racketeering. Government judge, trial Government oral when asked аt any details give proceedings during “adversarial” but investiga- stating only arguments, taking to be they appeared open court to do with and has ongoing” “still tion is di- in the proceeding moving .turns 12:22-12:46. Id. at corruption.” “public joint enter- to their most favorable rection the extraordi- one can envision Although trial approach whereby This prise. — could Government nary in which the case (1) the Government informed have interest compelling state show (2) “jointly”; matter handle the they will communications with limited record before off the conversations had certainly not such judge, (3) record; on the putting them mat- found *8 circuits havе case. Other cooperation spirit of in a together worked see, e.g., security, of national ters interest —con- the Government’s protect to 617, Yunis, 620 867 F.2d v. States constitu- of Barnwell’s a violation stitutes (D.C.Cir.1989), safety of witnesses or the rights. tional Napue, 834 jurors, see United States camera the first (7th example, Cir.1987), For after may 1311, 1316-18 F.2d judge the foreperson, the interview of whether consideration careful warrant wiretapped conversa- determined be should parte ex limited reported the however, not Government, tion consistent allowed. judge told the AUSA Corbett vote count. arguments. such makes no 852
that “I’m going not to any take further Government interjected, “I don’t (Sealed 8.) action.” Tr. point, At this why understand since purpose of ...” parte ex communications should have end- Id. at 665-66. Before Government counsel They Instead, ed. did not. judge the trial could finish his thought, the judge pro- then step took the affirmative of assisting claimed, “I’m not to going bring them in. investigation. Government with their There’s no ... I usually reason allow ev- Specifically, “give oppor- he offered an to erybody to talk jury]. to [the fact I tunity for somebody perhaps to use the usually invite everybody back in ... I’m phone” and expressed a personal concern going tо do it in this case....” Id. at that “no stone be left unturned.” Id. The 656. Additionally, a fair reading of the commented, judge further “I’ll send them suggests record that the trial judge, after [early]. to lunch going If she’s to do having prosecution, met with the handled something, you’ll kind of it.” have defense request counsel’s for Allen Shortly thereafter, during the 10:00 a.m. charges, verdict, partial a production of conference with parties present, all he transcripts, or other requests that formed all counsel that he would be send- would have the jury allowed to a make ing early to lunch “it because decision in short order. (J.A. up messes the marshals.” While “[t]he mere occurrence of an These were not isolated incidents. parte conversation between a trial When the court reconvened to discuss the juror and a does not a constitute third jury (just note with all parties after deprivation right constitutional ... fourth ex communication with right constitutional presence, to which Government counsel and agents), pros- derives from the Sixth Amendment’s Con ecution stated that “were concern[ed] frontation Clause ... exists about where bringing jury] [the into court be- reasonably substantial cause we don’t relation to know going what’s to come out fullness of point....” opportunity at that to against Id. at 655. defend Obvious- ly, the charge and to protect the Government to the extent wanted that a fair secrecy of just its and wiretap hearing did not would by want to be thwarted anything have said or tip done would defendant’s absence.” United States v. off targets. Thus, Bishawi, objection (7th over the 272 F.3d 461-62 Cir. 2001) defense decided to (citing United Gagnon, States v. 470 foreperson see the in his chambers in U.S. 105 S.Ct. 84 L.Ed.2d camera, stating that “I put it on (1985)). will Here, Barnwell was deprived record, you will have opportunity an of his Sixth right Amendment pres see the records. If there’s reason to seal every ent at stage critical of his criminal it, I’ll seal it. If there’s no reason to seal trial; to effective assistance counsel at it, I won’t....” Id. at 656. trial; and to be impartial tried jury. Spain, See Rushen v. mistrial, declaring
After U.S. the trial judge 114, 117-18, 104 S.Ct. 78 L.Ed.2d infringe continued to upon Barnwell’s due (1983) (“[T]he right process personal rights presence defense hinder coun- all ability stages sel’s critical effectively represent right client. For example, counsel are rights counsel for one of fundamental defendant.”). each criminal judge, co-defendants asked the It is evident *9 “Will you poll jury?” the Id. at 665. Ini- from the record the multiple that ex parte tially, judge “Yeah, the responded, I’ll communications between the trial bring jurors the in.” Immediately, and Government the in and camera meet- occurring parte ex communications jury fore- judge and the between
ings
not
reveal this informa-
judge’s failure
and instructed
person coupled
—
fact,
said communica-
the district court’s order to
counsel of
tion.
inform defense
Barn-
of both
pendency
transcripts to defense
during the
the sealed
tions
disclose
prejudiced
second
first and
further disclosure
prohibiting
and
well’s
trials —
repre-
legal
of Barnwell’s
effectiveness
thereof,
just that.
proves
to due
right
violated
sentation
of issues on
raises
number
Barnwell
a
law.
prоcess
questioning
of them
trial
appeal, most
instance,
judge’s fail
trial
granting
For
we are
judge’s rulings. Since
of his ex
counsel
Barnwell’s
apprise
trial,
ure to
address those
we will
issues
new
not
defense
divested
communications
parte
however,
note,
the trial
here. We
hear
request
opportunity
counsel of
only fuels
this case
approach
court’s
in
possible
juror impartiality
on
ings
concerning the
appeals
fairness
judge’s in
of the trial
effect
prejudicial
judicial
value of a
rulings.
of certain
“The
jury fore
conversations with
camera
substantially diluted
...
is
proceeding
was ef
Similarly, defense counsel
person.
because the
process
parte,
ex
where the
moving for the
fectively forestalled from
not have available
funda-
Court does
juror and
any potentially biased
removal of
judicial judgment:
mental instrument
an eleven mem
proceed
consenting
adversary
which both
proceeding
23(b)(2)-(3).
jury. See Fed.R.Crim.P.
ber
Carroll
Presi-
parties may participate.”
ignorance about the
continued
to their
Due
Anne, 393
Princess
dent & Comm’rs of
communications
parte
ex
judge’s
trial
III. foregoing reasons,
For RE- we
VERSE Barnwell’s convictions and RE-
MAND this case for a new trial. DAUGHTREY,
MARTHA CRAIG COMPANY, SMITH WHOLESALE Judge, Circuit dissenting. INC., Co., Rice Inc., Wholesale Anda- Distributing Co., Inc., lusia To- Dixie Writing majority ease, for the in this Candy Co., George bacco & Wholesale Judge Keith has job done a masterful Co., Ltd., Independent Inc., analyzing Wholesale principles of law condemning Co., McCarty-Hull L.P. Cigar Shanks criminal cases. However, Co., Inc., I Taylor Distributing Co., conclude that we need not R.C. decide whether unique set Grocery Co., of facts Inc., Reidsville A.B. Cok-