United States District Court, D. Colorado
A JUST CAUSE, a non-profit organization, and KENDRICK BARNES, an individual, Plaintiffs,
UNITED STATES OF AMERICA, and DARLENE M. MARTINEZ, Defendants.
R. BROOKE JACKSON, District Judge.
The case is before the Court on Defendants' motion to dismiss under Rules 12(b)(1) and 12(b)(6) [ECF No. 32]. For the reasons set forth herein, the motion is granted.
This case concerns a dispute about something that the presiding judge said but that was not recorded during a bench conference in a criminal case tried in this district in September 2011. In that case, United States v. Banks, et al., No. 09CR266-CMA, six individuals had been indicted for conspiracy and various individual counts of mail and wire fraud - 25 counts in all. The 17-day trial began on September 26, 2011 and concluded on October 20, 2011, resulting in one or more guilty verdicts against each defendant. On August 14, 2012 the court sentenced the defendants to varying terms of between 87 and 135 months in prison plus three years of supervised release and restitution of $5, 018, 959.66. Defendants' appeals are presently pending in the United States Court of Appeals for the Tenth Circuit.
The Bench Conference
October 11, 2011 was the eleventh day of trial in the criminal case. Following the testimony of three defense witnesses, Judge Arguello advised the defendants that they could call their next witness. Transcript [ECF No. 557] at 53. Defendant Gary Walker, who like the other defendants was representing himself pro se, asked to approach the bench. The transcript reads as follows:
THE COURT: Defense may call its next witness.
MR. WALKER: Your Honor, the defense - can we approach?
THE COURT: You may.
(A bench conference is had, and the following is had outside the hearing of the jury.)
MR. WALKER: Our next witness is scheduled at 10:30. We anticipated - it's going quicker.
THE COURT: That is unacceptable. I told you to have witnesses here. We are not going to recess again until 10:30. That is 40 minutes away. I told you to be prepared. They need to be here. Your witnesses are not taking long. We are going to go. The eight you named, you still have time. So you better get them here. So call your next witness.
MR. WALKER: Yes, Your Honor.
(The following is had in the hearing of the jury.)
MR. WALKER: Your Honor, we would like to check to see if Mr. Reese is in the witness room.
THE COURT: You may.
MR. WALKER: Your Honor, defense calls Ken Barnes.
Tr. at 53-54.
Kendrick Barnes was one of the defendants in the criminal case and is a plaintiff in the present case. After Mr. Walker finished his questions of Mr. Barnes, defendants David Banks and Demetrius Harper continued the direct examination. Tr. at 68-78. The last two defendants asked no questions, and Mr. Barnes declined to make any further statement beyond what had been asked of him. Id. at 78.
The morning break followed, after which government counsel Matthew Kirsch (outside the presence of the jury) asked the court to make it clear on the record that all parties "had every reason to believe that Mr. Barnes intended to testify no matter what happened in this case... regardless of the fact that the defense otherwise ran out of witnesses this morning." Tr. at 79. The following colloquy then occurred:
THE COURT: Well, I assume that because they put him on the stand that that was his intent to testify.
MR. KIRSCH: So did we, Your Honor.
MR. BANKS: Actually, Your Honor, it was something we felt like we had to do, to be honest with you. So we made that decision in an ad hoc type of fashion. So, just for the record.
THE COURT: You were told last week, both days when we ran out of witnesses, that you better have your witnesses ready to go. I never told you you had to put anybody on the stand today other than you needed a witness. So you made the decision to put Mr. Barnes on the stand. He is listed as a may-call witness. That is my understanding, it was your intent, it was Mr. Barnes' intent to testify.
MR. WALKER: Well, Your Honor, at this point -
THE COURT: And I will expect, as we move forward, we are going to have this day filled with witnesses. So you better get your witnesses lined up.
MR. WALKER: Yes, Your Honor. We have a witness running late now. He should already be here. He is running late. In fact, we have two who are running late. Our intention is not to put any other defendants on the stand, and so we would be forced to wait for them.
THE COURT: No. We are not waiting. I told you, you have your witnesses here ready to testify, and if you don't have them filled, I will not continue.
MR. WALKER: Well, Your Honor, it probably is best we don't continue because the other 5 co-defendants do not plan to testify at this point in time. We feel it would be coerced at this point.
THE COURT: So are you telling me you are not testifying? None of you are going to testify?
MR. WALKER: We were reserving that right to make that decision.
THE COURT: Well, then you better have your witnesses here, because we are going forward - and if you don't go forward, that means you are not going to testify. I am not going to recess. The jury has been inconvenienced twice now, having to go home early, having to be excused for lunch, to come back for a 5-minute witness, and then going home for the rest of the day. So, your witnesses, you better get them here.
Tr. at 79-81.
After some additional colloquy between the court and Mr. Walker concerning upcoming defense witnesses, and the court's reiteration that it would move forward with the trial if the defense did not have their witnesses ready to go, the following exchange took place:
MR. WALKER: All right, Your Honor. Given that, and given the instruction to the jury to either put one of those people on or to put one of us on, ...