Tommy Barrow v. United States

Case: 09-2297 Document: 006111178606 Filed: 01/10/2012 Page: 1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0030n.06
No. 09-2297
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 10, 2012
TOMMY JOE BARROW, )
) LEONARD GREEN, Clerk
Petitioner - Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
UNITED STATES OF AMERICA, ) MICHIGAN
)
Respondent - Appellee. )
Before: GIBBONS, STRANCH, and ROTH,* Circuit Judges.
JANE B. STRANCH, Circuit Judge. Petitioner Tommy Joe Barrow appeals the district
court judgment denying his petition for a writ of error coram nobis in which he sought to vacate his
1994 convictions for bank fraud, tax evasion, and filing false tax returns. For the reasons that follow,
we AFFIRM.
I. BACKGROUND
Barrow was the founder and controlling shareholder of Barrow, Aldridge & Co. (“BACO”),
a Detroit accounting firm. He was also the sole proprietor of Complete Information Services
(“CIS”), a data processing company.
*
The Honorable Jane R. Roth, Circuit Judge for the United States Court of Appeals for the
Third Circuit, sitting by designation.
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In 1982, Barrow was elected to the Board of Directors of Detroit Central Hospital, and in
1986 he became Chairman of the Board. During Barrow’s tenure, the hospital was renamed New
Center Hospital (“the hospital”), and ownership was transferred to a holding company, Central City
Health Services. By 1986, BACO acted as the accounting department for the hospital and the
holding company, and by 1987, CIS performed computerized billing services for the hospital and
related entities. Barrow eventually accepted the position of CEO of the hospital while he remained
the controlling shareholder of BACO.
In September 1989, Internal Revenue Service (IRS) Agent Wesley Bulik began investigating
BACO’s corporate tax return for the year ending March 31, 1988. The audit soon expanded to the
tax year ending March 31, 1989, and to Barrow’s personal federal income tax returns for 1984
through 1988. Following this investigation, in October 1993, a federal grand jury returned a fifteen-
count indictment against Barrow, charging him with making false statements in a bank loan
application, 18 U.S.C. § 1014; bank fraud, 18 U.S.C. § 1344; income tax evasion in tax years 1984
through 1988, 26 U.S.C. § 7201; filing false tax returns in tax years 1984 through 1988, 26 U.S.C.
§ 7206; and filing false amended corporate income tax returns for BACO twice for fiscal year 1988
and once for fiscal year 1989, 26 U.S.C. § 7206.
The Government’s theory on the bank fraud charges was that Barrow presented a false
application and false supporting personal income tax documents to a bank when Barrow requested
a loan. As to Barrow’s personal income tax returns for 1984 through 1988, the Government alleged
that Barrow deposited checks the hospital paid to BACO into his personal bank account, but he did
not report the income to the IRS or pay personal federal income tax on the funds. The Government
further alleged that, once Barrow realized he was under federal investigation for his failure to report
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income and pay income tax between 1984 and 1988, he falsely amended BACO’s corporate tax
returns for fiscal years 1988 and 1989 to shift the income received from the hospital to the
corporation in order to cover up his failure to declare the income on his personal tax returns. The
Government also introduced evidence under Federal Rule of Evidence 404(b) for the purpose of
showing Barrow’s intent. This evidence included Barrow’s alleged failure to file Michigan state
income tax returns for the years 1984 through 1987 and 1989 through 1992, and Barrow’s alleged
under-reporting of personal income on the 1993 federal income tax return he filed jointly with his
wife.
Barrow’s defense was that he made simple errors on the bank loan application and
documentation, that funds he received from the hospital payable to BACO were repayments on loans
that he personally had made to BACO, and because the funds were traceable to loan repayments, he
was not required to claim the funds as personal taxable income. Barrow testified that he did file
Michigan state income tax returns during the years in question, and he denied that he under-reported
personal taxable income in 1993.
After a ten-day trial, the jury acquitted Barrow of the tax charges for the 1984 and 1986 tax
years, but convicted him on all other counts. The district court imposed a sentence of 21 months of
imprisonment, which Barrow served. Barrow unsuccessfully challenged his convictions through
post-trial motions for mistrial, judgment of acquittal, and for new trial, as well as through direct
appeal. This Court affirmed the denial of his motion for new trial based on newly-discovered
evidence, Barrow v. United States, No. 96-1687, 1997 WL 31427 (6th Cir. Jan. 27, 1997), and also
affirmed his convictions on direct appeal. United States v. Barrow, 118 F.3d 482 (6th Cir. 1997).
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The Court later affirmed the denial of Barrow’s motion to vacate, set aside, or correct sentence under
28 U.S.C. § 2255. Barrow v. United States, 8 F. App’x 286 (6th Cir. 2001).
In 2007, Barrow filed the instant petition for writ of error coram nobis, which he amended
in early 2008. The district court denied the petition, and this appeal followed.
II. ANALYSIS
A. Standard of Review
A federal court’s power to issue the writ of error coram nobis derives from the All Writs Act,
28 U.S.C. § 1651. United States v. Morgan, 346 U.S. 502, 506 (1954). The writ of error coram
nobis may be used to vacate a federal sentence or conviction when a § 2255 motion is unavailable,
such as when the petitioner no longer meets the “in custody” requirement of § 2255 after serving a
sentence. Blanton v. United States, 94 F.3d 227, 231 (6th Cir. 1996). The writ may be granted if
the petitioner demonstrates: “(1) an error of fact; (2) unknown at the time of trial; (3) of a
fundamentally unjust character which probably would have altered the outcome of the challenged
proceeding if it had been known. United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001).
Coram nobis relief addresses extraordinary “circumstances compelling . . . action to achieve justice.”
Morgan, 346 U.S. at 511. On appeal from the denial of a petition for a writ of error coram nobis,
this Court reviews the district court’s factual findings for clear error and its legal conclusions
de novo. Johnson, 237 F.3d at 755. In undertaking this review, we are mindful of this Court’s three
prior Barrow decisions and the constraints those decisions necessarily impose upon our analysis.
B. Asserted grounds for relief
1. Alleged false testimony of IRS Agent
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Barrow contends that he is entitled to a writ of error coram nobis because IRS Agent Bulik
presented false testimony at the criminal trial, casting doubt on Barrow’s convictions. This argument
is unavailing for three reasons.
First, Barrow claims that Agent Bulik’s false testimony came to light during a 2004 civil trial
before the United States Tax Court concerning Barrow’s outstanding federal income tax liability.
Barrow claims that Agent Bulik admitted during the Tax Court proceeding that he manipulated a
mathematical gap in BACO’s financial data for 1988 and 1989 to support the Government’s criminal
case. Although Barrow purported to quote portions of the Tax Court testimony in his coram nobis
petition, Barrow did not submit to the district court the pertinent portions of the Tax Court and
criminal case records that he alleges established the claimed discrepancy in Agent Bulik’s testimony.
Additionally, Barrow asserted that Agent Bulik’s Tax Court testimony related to Exhibit 227-P, but
Barrow did not provide a copy of that exhibit to the district court in support of his petition. Because
Barrow did not supply the pertinent portions of the Tax Court and criminal records to support his
claims, the district court did not have those records before it to review. See United States v.
Murdock, 398 F.3d 491, 500 (6th Cir. 2005) (noting litigant offered no reasonable explanation for
failing to include documents in the record before the district court).
Barrow could not sidestep his error in failing to submit pertinent records to support his coram
nobis petition by asking the district court to take judicial notice of the Tax Court decision, Barrow
v. Comm’r, 96 T.C.M. 361, 2008 WL 5000112 (2008), and the Supreme Court’s opinion in
Boulware v. United States, 552 U.S. 421 (2008). “A judicially noticed fact must be one not subject
to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the
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trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b).
The Tax Court opinion did not include any factual findings to support Barrow’s claim that
Agent Bulik testified falsely during the Tax Court trial. The Tax Court made no reference to Agent
Bulik manipulating financial data, and the court collaterally estopped Barrow from denying the
commission of fraud in tax years 1985, 1987, and 1988 due to his criminal convictions for those tax
years. Barrow, 2008 WL 5000112 at *13. The fact that the Tax Court found in Barrow’s favor in
part on the calculation of certain tax deficiencies, based on application of a civil standard of proof
to a different factual record, has no bearing on the adjudicative facts that were before the jury in the
criminal case and concerning which the jury applied a higher burden of proof to convict Barrow of
multiple offenses. The district court correctly noted that Barrow offered the Tax Court opinion for
the truth of the matter asserted–that is, the wrongfulness of his criminal convictions–but because the
facts underlying the criminal convictions were in dispute, the Tax Court decision was not an
appropriate subject for the taking of judicial notice. Fed. R. Evid. Rule 201(b); United States v.
Collier, 68 F. App’x 676, 682 (6th Cir. 2003). Therefore, the district court did not abuse its
discretion in declining to take judicial notice of the Tax Court opinion. See Toth v. Grand Trunk
R.R., 306 F.3d 335, 349 (6th Cir. 2002).
There was no reason for the district court to take judicial notice of Boulware because that
published Supreme Court decision was readily available for the district court’s review. See id.
(“[J]udicial notice is generally not the appropriate means to establish the legal principles governing
the case.”). But more importantly, Boulware simply had no relevance to Barrow’s case. As the Tax
Court pointed out, “Boulware held that a shareholder in a criminal tax evasion case can claim that
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distributions from his company were a return of capital, without producing evidence that he or the
company intended this type of distribution. . . . But the Commissioner is correct in asserting that the
theory pursued by the government in Barrow’s criminal case didn’t involve this issue.” Barrow,
2008 WL 5000112, at *13. Barrow himself argued before the Tax Court that the Government did
not pursue a theory of corporate diversion at his criminal trial and that the Government should be
judicially estopped from asserting such a theory in the civil tax case. Id. at **12–13. For these
reasons, the district court did not abuse its discretion in holding that Boulware did not apply to
Barrow’s case.1 See Toth, 306 F.3d at 349.
The second reason we reject Barrow’s argument about Agent Bulik’s allegedly false
testimony is that the district court correctly determined that the evidence concerning a mathematical
gap in the Government’s financial analysis, which Barrow now claims Agent Bulik “plugged,” was
not “new” evidence unknown to Barrow at the time of his criminal trial. See Johnson, 237 F.3d at
755. As the district court noted, this issue was previously raised in Barrow’s motion for a new trial
on the ground of newly discovered evidence. On appeal from denial of that motion, this Court noted
that BACO’s general ledger and records were admitted into evidence at the criminal trial and Barrow
could have pointed out to the trial jury any relevant entries. Barrow, 1997 WL 31427, at *3.
Additionally, at sentencing, Barrow utilized an expert witness to present evidence of a mathematical
difference between certain entries in BACO’s ledger. Id. This Court concluded that arguments
1
Following oral argument, Barrow’s counsel filed a motion asking this Court to take judicial
notice of the Tax Court decision and record. That motion is denied. This Court does not consider,
for the first time on appeal, documents and transcripts that were not made a part of the record before
the district court below. Fed. R. App. P. 10(a); United States v. O’Dell, 805 F.2d 637, 643–44 (6th
Cir. 1986).
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concerning the mathematical gap did not amount to “new evidence” because the defense team could
have discovered the same evidence earlier by exercising due diligence prior to and during trial. Id.
Finally, even if Barrow could surmount the obstacles to relief just described, it appears that
Agent Bulik’s testimony would have related to Barrow’s tax convictions for calendar years 1987 and
1988 and not to a number of other offenses of which he was convicted. Barrow has not shown a
factual error of such fundamentally unjust character that it probably would have altered the outcome
of the entire proceeding, if the fact had been known. See Johnson, 237 F.3d at 755.
2. Alternative Minimum Tax Calculation
Next, Barrow contends that his conviction for willful filing of a false tax return for calendar
year 1985 was undercut by the admission of an IRS Agent during the 2004 Tax Court trial that
Barrow did not owe Alternative Minimum Tax (AMT) for tax year 1985, though the Government
had alleged at the criminal trial that he owed and failed to pay AMT. This Court previously
determined that Barrow’s trial defense team could have computed the correct amount of any AMT
owed and challenged the Government’s evidence at the criminal trial. Barrow, 1997 WL 31427, at
*2. That determination precludes coram nobis relief on this issue.
3. 1993 Joint Tax Return
Barrow further contends that the 1993 joint income tax return he filed with his wife was not
false and should not have been admitted at his criminal trial as Rule 404(b) evidence of intent. In
support, he asserts that the IRS issued a 4549-CG report in October 1997 in which the IRS made no
changes to the 1993 return.
We are unable to explore this argument because Barrow did not include the IRS report in the
district court record. But more importantly, Barrow previously addressed the IRS report in his
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§ 2255 petition. “[C]oram nobis relief is not available to litigate issues already litigated; it is
reserved for claims which have yet to receive their first disposition.” Klein v. United States, 880
F.2d 250, 254 n.1 (10th Cir. 1989); Willis v. United States, 654 F.2d 23, 24 (8th Cir. 1981) (per
curiam) (in the absence of credible new evidence or a change of law, a coram nobis petitioner is not
entitled to another review of issues previously raised in a § 2255 motion). As a result, this issue
cannot provide a basis for coram nobis relief.
4. Michigan State Income Tax Returns
Next, Barrow argues that the district court erred in admitting Rule 404(b) evidence during
the criminal trial concerning his failure to file Michigan state income tax returns. The Government
conceded to this Court on appeal from the denial of Barrow’s new trial motion that the Government
learned after the criminal trial that Barrow had, in fact, filed state income tax returns for some of the
years in question.
While this issue is troubling, it does not provide an avenue for relief for several reasons.
First, Barrow failed to provide the district court with any documents to substantiate his filing of state
tax returns. Even if he had, relief is foreclosed because this was not an error of fact unknown to
Barrow at the criminal trial. On appeal from the denial of Barrow’s new trial motion, this Court
ruled that the state tax return evidence was not “newly discovered” because Barrow testified in his
own defense at the criminal trial that he had filed his state income tax returns. Barrow, 1997 WL
31427, at *5. In addition, because Barrow previously raised this argument, the issue cannot provide
grounds for coram nobis relief. Willis, 654 F.2d at 24; Klein, 880 F.2d at 254 n.1.
5. Cumulative effect of errors
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Finally, Barrow argues that the cumulative effect of error so infected the fairness of his
criminal trial as to render the jury’s verdict unreliable, violating his due process rights. Because
Barrow has not shown circumstances that qualify as error, we need not consider the cumulative
effect of error.
III. CONCLUSION
A writ of error coram nobis is reserved for extraordinary situations where circumstances are
so compelling that court action is required to achieve justice. Barrow has not made a sufficient
showing of compelling circumstances to warrant issuance of the writ. Accordingly, we AFFIRM
the judgment of the district court.