19-271-cr United States v. Barnes

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of March, two thousand twenty-one.

PRESENT: DENNIS JACOBS, ROBERT A. KATZMANN, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 19-271-cr

CHRISTOPHER N. JOHNSON, JR.,

Defendant,

ANDRE L. BARNES,

Defendant-Appellant _____________________________________

FOR APPELLEE: Monica Jeanette Richards, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY.

FOR DEFENDANT-APPELLANT: André L. Barnes, pro se, Glenville, WV. Appeal from a judgment of the United States District Court for the Western District of New

York (David G. Larimer, J.; Jonathan W. Feldman, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on January 29, 2019, is AFFIRMED.

Defendant-Appellant André Barnes appeals from the district court’s January 29, 2019,

judgment of conviction entered after a jury found him guilty of one count of conspiracy to commit

sex trafficking in violation of

, 1594(c), two counts of interstate transportation

for the purpose of prostitution in violation of

(a), and six counts of sex trafficking

in violation of

. Barnes proceeded pro se for the majority of the district court

proceedings, including his trial, and continues pro se on appeal. We assume the reader’s

familiarity with the record.

I. Arguments Raised in the District Court

We review a district court’s findings of fact for clear error and its legal conclusions de

novo. See United States v. Lucky,

, 105–06 (2d Cir. 2009).

Barnes argues that the district court lacked jurisdiction over his crimes because they were

not transnational and did not affect interstate commerce, and he asserts that this Court lacks

jurisdiction over the appeal for the same reasons. But Barnes was convicted of sex trafficking of

minors and adults under

and 1594 and transporting an individual for prostitution

under

(a). The evidence showed, as affirmed by the jury verdict, that his

trafficking conduct affected interstate commerce, and that he moved that individual between New

2 York and New Jersey. That establishes a connection to interstate commerce; nothing in the

statute or the Constitution requires his victims to have crossed national borders as well.

Barnes argues that venue was improper in the Western District of New York because some

of the conduct alleged occurred in New Jersey. That is irrelevant. The evidence showed that at

least part of the charged conduct occurred in the Western District of New York. The fact that his

criminal activity also extended to New Jersey does not defeat venue in the Western District of New

York. See

(a) (providing that “[a]ny offense involving . . . transportation in

interstate or foreign commerce” may be “prosecuted in any district from, through, or into which

such commerce . . . or person moves”).

Barnes argues that pre-trial delays violated his statutory rights to a speedy trial under

Article IV(c) of the Interstate Agreement on Detainers Act (“IADA”), 18 U.S.C. App. § 2. But

the IADA was not applicable to Barnes’s criminal proceedings because he was never subject to a

federal detainer; instead, he elected to remain in state custody and waived his rights under the

IADA. Barnes also argues that the district court violated the Speedy Trial Act,

et seq., by improperly excluding six months for his mental competency examination. The district

court did not err; under § 3161(h)(1)(A), delays resulting from mental competency proceedings

“must be excluded from the calculation of the speedy trial clock whether or not they are

reasonable.” United States v. Vasquez,

(2d Cir. 1990).

Barnes argues that his due process rights were violated because two Assistant United States

Attorneys appeared at trial. Barnes asserts that “a party cannot be represented by two attorneys

in the same capacity,” Appellant’s Br. at 57, citing Matter of Kitsch Riker Oil Co., in which a state

court determined that, under New York law, a plaintiff could be represented only by one “attorney

3 of record.”

, 503 (N.Y. App. Div. 1965). Barnes’s claim is frivolous. This case

is not governed by New York law, and he cites no federal law that prohibits multiple attorneys

from representing the same party in a criminal case.

Barnes challenges his conviction on Count Nine, which charged him with sex trafficking

in violation of

(a) and (b)(1), as barred by res judicata because of a prior state

conviction relating to the same victim. Even assuming that res judicata applies to criminal cases,

it cannot apply where each case involves different parties or their privies. See Parklane Hosiery

Co. v. Shore,

, 326 n.5 (1979). Barnes’s previous prosecution by a state government

therefore could not bar prosecution by a different party, the federal government. Even if we

liberally construe this claim as a double jeopardy claim, it also fails because a state prosecution

does not bar a later prosecution by a different sovereign – here, the federal government. See

Gamble v. United States,

(2019).

II. Arguments Raised for the First Time on Appeal

We review the following claims, which Barnes did not raise in the district court, for plain

error. See United States v. Miller,

, 557–58 (2d Cir. 2020); Fed. R. Crim. P. 52(b).

Barnes argues that the second superseding indictment is invalid, principally because the

United States Attorney signed it electronically, and it did not bear the foreperson’s name or

signature. But where a party files a document electronically, the act of filing through that party’s

authorized account “together with the person’s name on a signature block, constitutes the person’s

signature.” Fed. R. Crim. P. 49(b)(2)(A). Moreover, “the absence of the [foreperson’s] signature

is a mere technical irregularity that is not necessarily fatal to the indictment.” Hobby v. United

States,

(1984) (internal citation omitted). Barnes also argues that the

4 indictment is facially insufficient and did not give him proper notice of the charges against him.

We discern no plain error in the indictment, which gave sufficient detail regarding the time, place,

and nature of his offenses and the identities of his victims.

Barnes next argues that his codefendant, Christopher Johnson, committed perjury at trial

and that the Government suborned this perjury. In order to be granted a new trial on this basis, a

defendant must show that the witness actually committed perjury, see United States v. Josephberg,

(2d Cir. 2009), meaning the witness gave “false testimony concerning a material

matter with the willful intent to provide false testimony,” United States v. Norman,

(2d Cir. 2015) (internal quotation marks and citation omitted). Barnes has not provided this

Court with transcripts of Johnson’s trial testimony, let alone any evidence to demonstrate that his

co-defendant falsely testified with the willful intent to give false testimony.

Barnes challenges his convictions for violating

as time-barred by the

five-year statute of limitations in

(a). However,

provides that

no statute of limitations applies to any felony offense under chapter 117 of Title 18. Because

chapter 117 contains § 2421, no statute of limitations applied to Barnes’s violations of § 2421.

We have considered all of Barnes’s remaining arguments and find them to be either waived

or without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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