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August 6, 2003


The opinion of the court was delivered by: Rebecca Pallmeyer, District Judge


Defendant Robert Burke was charged in six counts with making false statements to the grand jury investigating a notorious crime: the 1992 escape of a federal prisoner, Jeffrey Erickson, who seized a firearm from one federal officer and murdered two others before turning the gun on himself. On November 21, 2002, a jury convicted Burke on five of the six counts. He now moves for a judgment of acquittal, for a new trial, and for an evidentiary hearing on the government's alleged misconduct. For the following reasons, Burke's motions are denied.


I. Motion for Judgment of Acquittal

A. Materiality of the Grand Jury Testimony

Burke raises two arguments in support of his motion for a judgment of acquittal. First, he contends that his grand jury testimony was not material in that it was not elicited in an attempt to obtain useful information in furtherance of the grand jury's investigation. The court addressed this argument in an opinion issued on October 30, 2002, a copy of which is incorporated here by reference. As explained there, the question of whether Burke's testimony was material to a legitimate ongoing investigation is a mixed question of law and fact for the jury to decide. See United States v. Gaudin, 515 U.S. 506, 511 (1995). The record supports the jury's conclusion on this issue. Burke argues here, as he has before, that the government convened the grand jury for [ Page 2]

no purpose other than a "perjury trap." He notes now that at the time he was brought before the grand jury, three other individuals had already testified and implicated Burke in providing Erickson with the handcuff key that enabled him to break free from court security personnel. But in another context, Burke himself characterizes such evidence as "uncorroborated hearsay statements by convicted felons with axes to grind or favors to cull." (Defendant's Renewed Motion for Judgment of Acquittal, at 5.) Burke argues that he had given the FBI all the information he had in a 1992 interview; but it was not unreasonable for the government to explore the possibility that Burke would be more forthcoming when immunized, as he was before giving testimony in the grand jury. Finally, as the court has observed previously, the transcript of Burke's grand jury testimony demonstrates that the prosecutor was not focusing solely on Burke's own potential involvement in the Erickson matter, but also attempting to discover what information, if any, Burke might have concerning the involvement of others.

Burke's materiality objection is overruled.

B. Sufficiency of the Evidence on Count Five

Burke was found guilty of making false statements when he told the grand jury that he "did not" provide Erickson with a handcuff key or assist in making a handcuff key available to anyone at the Metropolitan Correctional Center ("MCC"). He now argues that the evidence was insufficient to support the verdict on this count. Burke faces an uphill battle in any sufficiency of the evidence challenge. United States v. Graham, 315 F.3d 777, 781 (7th Cir 2003). Such arguments rarely succeed, and this case does not constitute the rare exception. Four persons who were incarcerated with Burke and Erickson at the MCC in 1991 and 1992 testified on this issue. Chon Won Tai testified that Burke had offered him a handcuff key and had predicted, prior to Jeff Erickson's escape attempt, that "exciting things" would be happening to Erickson. Richard Luttrell and Humberto Gil-Vidarte testified that they observed Erickson holding something they believed [ Page 3]

to be a handcuff key; Gil-Vidarte testified that Erickson told Gil-Vidarte that the item in his hand had been given him by Burke (a statement admissible as that of a co-conspirator under FED. R. EVID. 801(d)(2)(E)). Gil-Vidarte and Tom Hogan were witnesses to an argument between Burke and Erickson in which, according to Gil-Vidarte, Erickson promised to pay Burke for having "got you [Erickson] what you wanted." Two other inmates, Fred Rock and James Taylor, who were housed with Burke at the MCC years later, testified that Burke told them he had given Erickson the key. Tape recordings of conversations between James Taylor and his father and between Taylor and his lawyer corroborate Taylor's testimony about Burke's alleged admission. In addition to this testimony, the government presented pages from a book found in Erickson's cell which had been cut to create a space to conceal an object in the shape of the handcuff key.

Defendant correctly notes that evidence that he told other inmates he had given Erickson the key does not amount to evidence that he actually did so. Indeed, the government itself presented ample evidence that Defendant Burke boasted to other inmates about his power to "make things happen" that would shorten their sentences or otherwise improve their situations. Most of Burke's claims about his powers were inflated and false. The jurors were aware of these false statements, however, and the court must assume they were capable of considering the context in their assessment of the truth of Burke's alleged statements about the handcuff key.

Burke's challenge to the sufficiency of the evidence on Count Five fails.

II. Motion for New Trial

Burke raises a number of arguments in support of his motion for a new trial: sufficiency of the evidence; ineffective assistance of counsel; a violation of the "rule of specialty"; "outrageous government misconduct"; error in disqualifying Attorney Thomas Durkin; error in denying the motion to permit "safe passage" to Burke's material witness; error in failing to strike inflammatory/ surplusage from the indictment; error in failing to dismiss Count Two of the indictment as vague; [ Page 4]

error in admission of "other acts" evidence; prosecutorial misconduct before the grand jury; and error in the court's rulings on pretrial motions, motions at trial, and jury instructions.

A. Previously-Addressed Arguments

As the government observed in its consolidated response to Burke's motions, several of these arguments have been raised and addressed earlier. The court incorporates its rulings on these issues: The "rule of specialty" argument, argument concerning alleged outrageous government conduct, and argument of misconduct before the grand jury, were all addressed in the court's October 30, 2002 opinion, which is incorporated here by reference. That order did not specifically address Burke's argument that the court should have dismissed Count Two of the indictment as vague, but the court is unmoved by that argument. Count Two charges that Burke lied when he told the grand jury that he did not "ever tell an inmate that [he] could smuggle contraband into the MCC." Burke does not explain why this language is vague, nor will the court assume that either Burke himself or the jurors did not understand the meaning of the word "contraband."

The court addressed the "other acts" evidence in an order entered on October 28, 2002, also incorporated here. The court denied Burke's motion to strike "inflammatory surplusage" in a brief order on November 20, 2002, which is incorporated here.

On July 12, 2002, the court disqualified Attorney Thomas Durkin on grounds that he might be called as a witness. The court stands by its ruling on that issue, as well. In particular, the court notes the evidence that Durkin represented James Taylor at the time that Taylor obtained evidence damaging to Burke, evidence he shared with Durkin in a telephone conversation. The court notes, further, that Mr. Durkin was present in the courtroom throughout the trial. Although he did not sit at counsel table, he did participate in virtually every argument made in the jury's absence. Burke now argues that the court erred in not permitting Mr. Durkin to sit at counsel table, but he offers no [ Page 5]

suggestion as to how the seating arrangement prejudiced him.

Burke has developed his sufficiency of the evidence argument only with respect to Count Five. The court has addressed that argument above, in connection with Burke's post-trial motion for judgment of acquittal. Nor will the court further amplify its pre-trial rulings, trial rulings, or rulings on instructions, where Burke has offered no further specific explanation of how the court erred.

What remain of Burke's arguments in this motion are his contention that the court erred when it failed to require the government to immunize Burke's mother and that the attorney who represented Burke when he testified before the grand jury provided ineffective assistance. The court addresses those arguments below.

B. Testimony of Burke's Mother

A continuing mystery in this case involves Burke's access to the handcuff key that he allegedly gave Erickson. The government's theory is that Burke's own mother obtained the key and smuggled it into the MCC. There is no dispute that Burke was entitled to attempt to refute this theory by calling his mother as a witness. Burke's mother is an Irish national, however, who reportedly will not enter the United States absent an assurance from the United States that she will not be prosecuted as a result of her testimony, The government refused any such assurance, emphasizing that under no circumstances would Mrs. Burke be immunized against a prosecution for perjury if she were to lie under oath.

Burke has expressed his concerns about his mother's testimony in different ways. Prior to trial, Burke moved for an order permitting his mother "safe passage" to the United States to permit her to testify on her son's behalf. The government represented at that time that it had no current intention to arrest Mrs. Burke on her arrival in the United States, and the court concluded that this representation rendered Burke's "safe passage" motion moot. Burke acknowledged in his pre-trial motion that a criminal defendant may not ordinarily demand that the government immunize a [ Page 6]

defense witness who would otherwise exercise her Fifth Amendment privilege. At trial, however, Burke argued that the government's refusal to immunize his mother effectively distorted the fact-finding process in this case and therefore violated his due process rights.

A criminal defendant's right to present witnesses in his own defense constitutes a fundamental element of due process. United States v. Hooks, 848 F.2d 785 (7th Cir. 1988), citing Washington v. Texas, 388 U.S. 14, 19 (1967) and Burris v. Young, 808 F.2d 578, 581 (7th Cir. 1986). These witnesses must be free to testify without fear of retaliation; thus, conduct by prosecutors and judges which discourages defense witnesses from testifying can violate due process. See, e.g., Webb v. Texas, 409 U.S. 95, 98 (1972) (reversing a conviction where the trial judge's severe warnings to the defendant's only witness resulted in his declining to testify); United States v. Morrison, 535 F.2d 223 (3d Cir. 1976) (reversing a conviction where the prosecutor induced the defense witness to refuse to answer questions by making repeated stern warnings about a possible perjury prosecution); United States v. Thomas, 488 F.2d 334 (6th Cir. 1973) (reversing a conviction after a government agent threatened to prosecute a defense witness); United States v. Heller, 830 F.2d 150 (11th Cir. 1987) (reversing a conviction for tax evasion where IRS agents induced defendant's accountant to testify falsely against him).

As Burke acknowledges, federal courts do not have the power to grant immunity to a witness absent a request from the United States Attorney. United States v. Schweihs, 971 F.2d 1302 (7th Cir. 1992), citing United States v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir. 1988), The prosecutor's power to refuse to seek immunity is, however, limited by the defendant's right to due process. Schweihs, 971 F.2d at 1315, citing Hooks, 848 F.2d at 799. A violation of that right occurs when the prosecutor uses his or her authority to immunize witnesses with the intention of distorting the fact-finding process. Schweihs, 971 F.2d at 1315. In Herrera-Medina, the Seventh Circuit provided the following example of such a situation: [ Page 7]

Suppose the government had no intention of prosecuting a witness, but, wanting to deprive the defendant of that witness's testimony, threatened the witness with prosecution, at the same time refusing to grant immunity. Tactics so sharp might require dismissal of the indictment, provided the witness's testimony was important to the defense — though we know of no case that has actually been dismissed on this ground.
853 F.2d 564 at 568. Thus, although the court may not order the prosecution to immunize a defense witness, it may dismiss charges when the prosecutor's use of his power to immunize witnesses violates due process.

The Sixth Circuit applied these principles recently in United States v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001). Defendant, a Nigerian native, was convicted of conspiracy to import heroin. He argued on appeal that the government had interfered with his ability to call his incarcerated brother to testify in his defense; the brother had refused to testify after jail officials harassed him and warned him he could be prosecuted for perjury if he were to "lie for [the defendant]." Id. at 399. The Sixth Circuit declined to reach the question of whether the jail guard's statements could be imputed to the United States; even if they could, the court found "no substantial interference with Defendant's right to call his brother as a witness his defense" where the brother had independent reasons for exercising his Fifth Amendment privilege. Id. at 400. Nor would the court entertain Emuegbunam's challenge to the prosecution's refusal to immunize the brother. The prosecution has a right to do so, the court noted, "when it does not wish to hinder a future criminal prosecution of the witness." Id. at 401, citing United States v. Mohney, 949 F.2d 1397, 1402 (6th Cir. 1991).

The circumstances here likewise do not support a finding of misconduct or other interference with Defendant's right to call his mother as a witness. There is no evidence of any threats or other efforts to intimidate her. Indeed, as AUSA Hogan suggested, the government might have welcomed Mrs. Burke's testimony to the extent it could have bolstered the government's arguably implausible theory: that a law-abiding elderly woman would have assisted [ Page 8]

her son in criminal wrongdoing. The government does not "intimidate" a witness simply by refusing to immunize her. Nor can the possibility of a perjury prosecution be fairly viewed as interference with a witness: "The requirement of sworn testimony, backed by punishment for perjury, is as much a protection for the accused as it is a threat" United States v. Dunnigan, 507 U.S. 87, 97 (1993), quoted in United States v. Griffin, 310 F.3d 1017, 1024 (7th Cir. 2002).

To this court's best understanding, Mrs. Burke chose not to appear and give testimony on the advice of her own attorneys. The court perceives no obligation on the part of the prosecution to immunize her. At a minimum, its refusal to do so did not constitute a denial of due process.

C. Ineffective Assistance of Counsel

Upon Burke's arrival in the United States after extradition, Attorney Michael Falconer was appointed to represent him. Burke now argues that Falconer's failure immediately to recognize that the court had erred in sentencing Burke back in 1993 constituted ineffective assistance: "Had Mr. Falconer realized the illegality of the sentence, the government would not have been in a position to detain Defendant in the first instance, could not have successfully indicted him, and would have been required to release him and permit him to return to London under the `rule of specialty.'" (Defendant's Motion for New Trial, at 2.)

The circumstances here demonstrate that regardless of the alleged impropriety of Burke's original sentence, the requirement that he appear before the grand jury can not meaningfully be attributed to any action or inaction of Attorney Falconer. Falconer was appointed by Magistrate Judge Bobrick on December 22, 2000, the day of Burke's arrival here, but after he had been served with a grand jury subpoena. The fact that Burke's 1993 sentence was improper would not relieve him of his obligation to comply with the subpoena in January 2001, Burke has not explained why, even if Falconer had realized immediately that Judge Lindberg mistakenly applied the Sentencing Guidelines to a pre-Guidelines offense in 1993, Burke would have been excused from appearing [ Page 9]

before the grand jury. Nor does Burke suggest that his grand jury testimony (which the jury has found to be perjurious) was the product of any ...

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