                                                                                            FILED
                            NOT FOR FULL-TEXT PUBLICATION                               Feb 10, 2010
                                  File Name: 10a0080n.06                          LEONARD GREEN, Clerk

                                             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
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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