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United States v. Barr

United States District Court, N.D. Georgia, Rome Division

November 7, 2019

United States of America,
v.
Michael Anthony Barr (1), Defendant.

          ORDER

          MICHAEL L. BROWN UNITED STATES DISTRICT JUDGE.

         On November 5, 2019, the Court held a pretrial conference and hearing to address outstanding motions. The Court announced its rulings but provides this order to memorialize and supplement (some of) its previous findings.

         1. The Court denies Defendant Barr's Motion for Judicial Notice of Adjudicative Facts and Motion for Reconsideration of Denied Motions (Dkt. 190-1). Defendant Barr has failed to establish his right to reconsideration by showing (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice. United States v. Morgan, No. 1:08-CR-208- TCB, 2016 WL 11410576, at *1 (N.D.Ga. Mar. 17, 2016) (“Although no statute or rule expressly provides for the filing of a motion for reconsideration in criminal cases, federal district courts necessarily have substantial discretion in ruling on motions for reconsideration. As in the context of a motion for reconsideration filed in a civil case, appropriate grounds for reconsideration include: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice.” (quotation marks and citations omitted)).

         2. Whether Judge Cindy Morris of the Whitfield County Superior Court signed the search warrant authorizing the search of Defendant Barr's residence is a question of fact. Defendant Barr filed several motions arguing that he needs more examples of her signature, signatures from other witnesses, and additional expert analysis before the Court can decided this issue. The Court disagrees. Based on the totality of evidence, the Court finds that Judge Morris signed the search warrant.

         Judge Cindy Morris testified unequivocally that she signed the warrant. She also provided an affidavit and affirmed its accuracy on the witness stand. (Dkts. 204-1 at 13; 255 at 6:5-25.) She explained that her handwriting and signature deteriorate throughout the day as her hand becomes fatigued, possibly causing her signature to change. (Dkt. 264 at 16.) She explained she started wearing a brace because of numbness and pain in her writing hand. (Id.) Judge Morris also explained her internal process for approving warrants. She explained that she keeps in her own file a copy of the executed warrant, affidavit, and return. (Id. at 14.) Before coming to court, she found her copies of those documents for the warrant at issue and attached them to her affidavit. (Id. at 15, 20, 26.) Her possession of the documents corroborates her testimony that she signed the warrant on the day of the search. Judge Morris was credible.[1]

         Detective Dewayne Holmes also testified. He said that he saw Judge Morris sign the warrant. The undisputed evidence also shows that Detective Holmes stopped the protective sweep of Defendant Barr's home when he saw many firearms. (Id. at 23.) In an abundance of caution, he backed out of the house and told Defendant Barr he would obtain a warrant. This historical fact supports his testimony that he did just that - obtained a warrant. He was credible.

         Defendant Barr's stand-by counsel (with Defendant Barr's consent) proffered to the Court that (during Defendant Barr's investigation of the warrant) he spoke with Lynda Black, Judge Morris's assistant. The lawyer explained that Mrs. Black looked at the signature on the warrant at issue and recognized it as Judge Morris's signature. Mrs. Black also explained that she showed the signature to Judge Morris, and Judge Morris confirmed her signature. While Mrs. Black did not testify, Defendant Barr admits she made this statement, and the Court accepts that admission. All three potential witnesses agree that Judge Morris signed the warrant.

         Defendant Barr's own analysis of publicly available documents containing Judge Morris's signature showed that she has used the signature at issue here going back to at least January 2011. (Dkt. 195-2 at 23.) Defendant Barr dismisses the import of this evidence from his own analysis by simply expanding the scope of his imagined conspiracy, claiming the signature “seems to be the ‘default go to signature' for who knows how many conspirators who have been violating the rights of the citizens [of Georgia] which probably consists of countless law enforcement [officers] with at least knowledge of Judge Cindy Morris' actions.” (Dkt. 195 at 24.) The Court disagrees with Defendant Barr's conclusion. Evidence that Judge Morris used the signature at issue for many years on other documents supports her testimony that she signed the warrant here.

         The Court also considered the testimony of Defendant Barr's witness, Steven Drexler, a forensic handwriting examiner. After comparing various documents purporting to bear Judge Morris's signature and noticing a difference between them, he concluded someone other than Judge Morris signed the search warrant. He claimed to be 65% to 70% sure in his assertion. (Dkt. 255 at 43:3-6.) He admitted, however, that one person could have two very different signatures, describing the difference as a “credit card signature” and a “formal signature.” (Id. at 40:15-22.) He also admitted that a person could have two different signatures as a result of hand fatigue or carpal tunnel syndrome. (Id. at 39:21-40:8.) Defendant Barr asked if “a hand element, like carpal tunnel or something, . . . are you saying that the probability of someone having a completely different signature with completely different characteristics altogether would be the result of fatigue, because that's what [Judge Morris's] affidavits says?” (Id. at 47:18-24.) Mr. Drexler answered “it's possible, yes.” (Id. at 47:25)

         Defendant asks the Court for more documents containing Judge Morris's signature, like her home mortgage, driver's license, and bar records. (Dkts. 203; 224-1.) He also asks for her medical records documenting her hand ailment. (Id.) But Defendant Barr already has many examples of her signature. And regardless of his own belief in the similarities or differences between the various signatures or however many other signatures he gets, his own expert has admitted that fatigue - as opposed to forgery - could account for the difference between examples of Judge Morris's signatures. Defendant Barr's own expert assessed Judge Morris's explanation and found it possible.[2] More signatures might allow more analysis and might even allow the expert to increase his percentage of certainty. But however high Mr. Drexler got that percentage, he has already admitted that her hand ailment could explain the difference in the appearance of her signatures. He could not get to 100%, and more analysis would thus be futile.

         In the light of all the evidence, the Court finds that Judge Morris signed the warrant at issue.[3] The Court thus denies Defendant Barr's various motions on this issue, specifically his Brief in Support of September 6th, 2019 hearing on Judge Cindy Morris (Dkt. 224-1); Motion for Court to take Notice of Adjudicative Facts (Dkt. 195); and Affidavit in Support of Subpoena to Produce Documents (Dkt. 203).

         3. The Court adopts the Magistrate Judge's non-final Report and Recommendation (Dkt. 248) and grants Defendants Diaz's and Barr's respective motions to dismiss Count 9 of the Second Superseding Indictment (Dkts. 223, 230-2).

         4. The Court denies Defendant Barr's Objection to Juror Oath (Dkt. 126). Contrary to Defendant Barr's assertion at the hearing that jurors may do as they wish, the law requires jurors to follow the law as the Court provides.

         5. The Court adopts the Magistrate Judge's non-final Report and Recommendation (Dkt. 241) and denies Defendant Barr's Motion to Dismiss the ...


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