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.
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
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,
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
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.
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 coschemers. 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 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
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
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).
In short, a court‘s consideration of an argument must be commensurate with the weight that argument carries in the defendant‘s case in mitigation. See Pilon, 734 F.3d at 656. If a
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
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
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
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.
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 Rule 11 colloquy.” United States v. Rinaldi, 461 F.3d 922, 926–27 (7th Cir. 2006); see
“Ineffective assistance of counsel can render a plea agreement involuntary, and is therefore a valid basis for withdrawing a guilty plea.” Lundy, 484 F.3d at 484. To show ineffective assistance of counsel in this context, a defendant must show that (1) the attorney‘s performance was objectively unreasonable; and (2) but for the attorney‘s deficient performance, the defendant would not have pled guilty. United States v. Peleti, 576 F.3d 377, 383 (7th Cir. 2009). We are not required to address these elements in a particular order. See Strickland v. Washington, 466 U.S. 668, 697 (1984).
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).
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 Rule 11 colloquy. And he does not dispute the facts that establish his guilt. Instead, he simply argues that he “unquestionably provided the [d]istrict [c]ourt … with ‘a fair and just reason,’ for the withdrawal of his guilty plea.” (Id.) We disagree.
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.
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 § 144 if the “moving papers are sufficient,” making § 144 a powerful tool that could easily be abused. United States v. Betts-Gaston, 860 F.3d 525, 537 (7th Cir. 2017). So, we strictly enforce its requirements. See United States v. Barnes, 909 F.2d 1059, 1072 (7th Cir. 1990). This means that a district court can deny a motion for recusal under § 144 if the moving party fails to satisfy the statute‘s strict procedural demands. See, e.g., Betts-Gaston, 860 F.3d at 537–38 (affirming the district court‘s denial of a § 144 recusal motion for multiple reasons, including failure to file an affidavit and failure to file a certificate of good faith); United States v. Sykes, 7 F.3d 1331, 1339 (1993) (holding that recusal was not required where the party‘s affidavit “fails to satisfy the stringent requirements of section 144 in a number of respects“).
Barr argues that he satisfied the requirements of § 144, mandating Judge Norgle‘s recusal from the case. But Barr‘s
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 § 455(a), a party must show “that a judge‘s impartiality might be questioned by a reasonable, well-informed observer.” United States v. Herrera-Valdez, 826 F.3d 912, 917 (7th Cir. 2016). For Barr to successfully seek Judge Norgle‘s recusal, he must “show an objective, disinterested observer fully informed of the reasons for seeking recusal would ‘entertain a significant doubt that justice would be done in the case.‘” Simon, 937 F.3d at 826 (quoting Herrera-Valdez, 826 F.3d at 917).
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.
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
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 § 455(b)(1), we must determine whether a reasonable observer would conclude that the judge was biased. See Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996). Bias must be proven by compelling evidence, and it must be grounded in some form of personal animus that the judge harbors against the litigant. Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635, 640 (7th Cir. 2002). But judicial rulings alone are almost never a valid basis for a recusal motion. Liteky v. United States, 510 U.S. 540, 555 (1994). In fact, “[a] judge‘s ordinary efforts at courtroom administration—even a stern and short-tempered judge‘s ordinary efforts at courtroom administration—remain immune” from charges of bias or prejudice.
Barr reiterates that the district judge‘s bias here originates from Barr‘s counsel‘s involvement in Mohsin. And, like for his argument under § 455(a), Barr focuses on Judge Norgle‘s
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 § 455(b)(1). Judge Norgle did interrupt Barr‘s counsel during his sentencing argument. And he also made comments to Barr‘s counsel, on a few occasions, that could be perceived as hostile. Yet, these comments were all made directly in response to arguments raised by Barr‘s counsel during the hearings. This is courtroom administration. And even if during Judge Norgle‘s efforts at courtroom administration he expressed dissatisfaction, annoyance, or even anger with Barr‘s counsel, that is still not a reason for Judge Norgle to recuse himself. See Grove Fresh Distribs., 299 F.3d at 640.
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
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 § 455(b)(1).
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
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