United States of America v. United States District Court for the Eastern William Henry Barnwell, District of…

NOT FOR FULL-TEXT PUBLICATION
File Name: 10a0080n.06
No. 08-1738
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE EASTERN
WILLIAM HENRY BARNWELL, DISTRICT OF MICHIGAN
Defendant-Appellant.
____________________________________/
BEFORE: SUHRHEINRICH, McKEAGUE and KETHLEDGE, Circuit Judges.
SUHRHEINRICH, Circuit Judge. In this interlocutory appeal, Defendant William
Henry Barnwell appeals the district court’s denial of his motion to dismiss on double jeopardy
grounds. Barnwell’s original trial ended in a mistrial after the judge declared that the jury was
hung. Barnwell was retried, before the same judge, and convicted of embezzlement and theft of
labor union assets and conspiracy to engage in the misappropriation of union assets. After the
second trial, it was revealed for the first time to Barnwell that the judge had, during the first trial,
engaged in five ex parte conversations with the Government while the jury was in deliberations.
These ex parte conversations occurred after government agents monitoring a wiretap,
coincidentally approved by the same judge, heard a discussion that suggested that a juror had
leaked information about the deliberations.
Barnwell appealed his conviction to this court. He made several arguments for reversal
that pertained to the ex parte conversations, one of which was similar to the double jeopardy

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argument currently before this court. This court held that these conversations violated
Barnwell’s rights to due process, effective assistance of counsel, and trial by an impartial judge
and jury. United States v. Barnwell, 477 F.3d 844 (6th Cir. 2007). This court remanded to the
district court for a third trial. The district court judge subsequently recused himself.
Barnwell then filed this motion to dismiss, arguing that the Double Jeopardy Clause
prohibited the district court from trying him again because of the ex parte conversations during
the first trial. The district court denied the motion. The judge held that the law of the case
doctrine and the mandate rule barred his consideration of the motion. Furthermore, the judge
determined that, even if the double jeopardy argument was considered, it failed on the merits
because a manifest necessity existed for the mistrial declaration.
After reviewing the briefs, the record, and its applicable law, we are persuaded that the
district court properly denied Barnwell’s motion. Accordingly, we AFFIRM the decision by the
district court denying Barnwell’s motion to dismiss for the reasons stated in its opinion dated
June 18, 2008.

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