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United States v. Burke

April 21, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROBERT A. BURKE, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Robert Burke was convicted by a jury of five counts of perjury, 18 U.S.C. § 1623, and this court sentenced him to a term of 240 months. Burke's conviction and sentence were affirmed in two appeals. United States v. Burke, 425 F.3d 400 (7th Cir. 2005) (conviction); United States v. Burke, 281 F. App'x 556 (7th Cir. 2008) (sentence). He now moves the court, pursuant to 28 U.S.C. § 2255, to vacate his convictions or, in the alternative, reduce his sentence. In support of his motion, Burke argues, first, that the lawyers who represented him on appeal, including Thomas Durkin, were constitutionally ineffective for failing to challenge the court's order disqualifying Durkin as trial counsel. Burke also argues that appellate counsel and trial counsel were ineffective for failing to properly raise the argument that four of his perjury counts were multiplicitous, and, therefore, that sentencing him to consecutive terms for each conviction violated the Double Jeopardy Clause.

BACKGROUND

Burke's conviction has its roots in an infamous event in this court's history, in which two federal officers lost their lives. On June 20, 1992, Jeffrey Erickson was being transported from the Courthouse, where he was on trial for bank robbery, back to the Metropolitan Correctional Center ("MCC"), where he was being housed. While riding the elevator to the basement where a transport bus was waiting, Erickson was able to remove his handcuffs using a key that had been smuggled into his possession. Once he exited the elevator in the basement, Erickson overpowered a deputy U.S. Marshal and seized her revolver. With the weapon, Erickson shot and killed U.S. Marshal Roy Frakes and continued out of the basement. As he ran up the ramp to Jackson Street, Erickson exchanged fire with Court Security Officer Harry Belluomini, who Erickson also shot and killed. Erickson, himself wounded by the shots from Belluomini, stopped halfway up the ramp and killed himself with a gunshot to the head. The handcuff key was found beside Erickson's body.

Erickson had been housed at the MCC with Burke, who, at the time, was awaiting trial for bank theft. As part of a large-scale investigation into Erickson's escape attempt, Burke was interviewed but denied any involvement. In September 1992, Burke pleaded guilty to two charges of bank theft and served about half of a five-year sentence. Upon his release in 1994, Burke violated the terms of his supervised release by fleeing the United States. He was arrested in London in 1998 but successfully fought extradition for two years until he was returned to the United States. See In re Burke, [2001] 1 A.C. 422 (H.L.) (appeal taken from Q.B.) Under the Rule of Specialty, as codified in the extradition treaty between the United States and the United Kingdom, an extradited defendant may be prosecuted only for the crime for which he is extradited or for offenses committed after the extradition. Burke, 425 F.3d at 408 (citing Extradition Treaty Between the United States and United Kingdom, June 21, 1977, 29 U.S.T. 227, T.I.A.S. No. 8468). Thus, because Burke was extradited for violating the terms of his supervised release, he could not be charged with assisting Erickson, absent a second round of extradition proceedings or a waiver of the Rule by the United Kingdom. See UNITED STATES ATTORNEYS' MANUAL at 9-15.500, available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/15mcrm.htm#9-15.500 (last visited Apr. 16, 2010). The Government chose not to attempt such a prosecution. Instead, the Government granted Burke immunity from prosecution regarding the escape attempt, thereby forcing him to give testify before the grand jury. In his testimony, Burke denied any involvement with Erickson's acquisition of the handcuff key and denied ever talking to Erickson or other inmates about the key.

The Government concluded that Burke's testimony was false, and on December 11, 2001, indicted him on six counts of perjury before a grand jury, 18 U.S.C. § 1623. Before trial, the court disqualified Burke's attorney Thomas Durkin from participating in the trial based on the possibility, discussed in much greater detail below, that he would be called as a witness at trial. After a twelve-day trial, the jury convicted Burke on five of the six counts, and the court sentenced him to 240 months. The Seventh Circuit affirmed Burke's convictions on direct appeal but, in light of United States v. Booker, 543 U.S. 220 (2005), remanded for resentencing. Burke, 425 F.3d at 416-17. The court resentenced Burke to the same term, this time cognizant of its discretion under Booker to disregard the Sentencing Guidelines, and the Seventh Circuit affirmed the sentence. Burke, 281 F. App'x at 556. In his motion under 28 U.S.C. § 2255, Burke raises two grounds for relief from his convictions and sentence. First, he argues that appellate counsel was ineffective for failing to challenge the court's order disqualifying Burke's chosen counsel from participating in the trial. Second, he argues that trial and appellate counsel were ineffective for failing to argue the multiplicity of the offenses of conviction, which, he goes on to argue, means that his convictions and sentence violate the Double Jeopardy Clause.

ANALYSIS

The Seventh Circuit has explained that "relief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). To succeed on his motion, Burke must show that his "sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).

Before reaching the specifics of Burke's claims, the court pauses to consider the Government's assertion that Burke's failure to raise his current contentions on direct appeal bars him from raising them now. (Gov't Br. at 3-4.) The Government is of course correct that a motion under § 2255 cannot generally be used to raise arguments that could have been presented earlier. Bousley v. United States, 523 U.S. 614, 622 (1998). Both of Burke's arguments, however, are raised under the guise of ineffective assistance of counsel, an issue appropriately raised on direct appeal in only the rarest of cases. Even in those rare cases, the failure to raise the issue on direct appeal does not bar raising it in collateral proceedings. Massaro v. United States, 538 U.S. 500, 504-05 (2003). The Government's objection to § 2255 relief on this basis is overruled.

A. Disqualification of Counsel

To succeed on his claim that appellate counsel was constitutionally ineffective for failing to raise the disqualification issue, Burke must show that "appellate counsel's performance was deficient and that this deficiency prejudiced him." Suggs v. United States, 513 F.3d 675, 678 (7th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668 (1984)). As the Government points out, appellate counsel raised numerous issues: Burke's opening brief in the Seventh Circuit has a table of contents listing nine issues and the discussion section in the court's opinion is divided into nine sections, corresponding to those issues. Brief of Appellant at i-ii, United States v. Burke, No. 03-3483 (7th Cir. Aug 27, 2004); Burke, 425 F.3d at 400. The failure to raise yet another issue would only constitute deficient performance-and satisfy the first prong of the test for ineffective assistance-if that issue is significant and obvious as well as clearly stronger than the issues actually raised. Suggs, 513 F.3d at 678.

The first step in showing that the disqualification issue was significant, obvious, and clearly stronger than the issues actually raised on appeal is to show that the court's disqualification ruling was erroneous. Legally, the court's ruling was based on Local Rule 83.53.7(b):

If a lawyer knows or reasonably should know that the lawyer may be called as a witness other than on behalf of the client, the lawyer may act as an advocate in a trial or evidentiary proceeding unless the lawyer knows or reasonably should know that the lawyer's testimony is or may be prejudicial to the client.

The problem of a lawyer serving as a witness normally arises when the lawyer seeks to offer testimony in support of her client. Even in those circumstances, courts are ordinarily reluctant to permit a lawyer to testify. A lawyer's acting as both advocate and witness generates, among other concerns, the appearance of impropriety and the "risk that the trier of fact will confuse the roles of advocate and witness and erroneously grant testimonial weight to an attorney's arguments." United States v. Morris, 714 F.2d 669, 671 (7th Cir. 1983); see also N.D. ILL. L.R. 83.53.7 cmt. When a lawyer's testimony will be prejudicial to her client, though, the risks of confusion and the appearance of impropriety are even greater. Neumann v. Wright, No. 93 C 2049, 1993 WL 384527, at *1 (N.D. Ill. Sept. 28, 1993). Those greater risks are reflected in the ...


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