UNITED STATES DISTRICT

NORTHERN DISTRICT OF ILLINOIS DOCKETED

EASTERN DIVISION

UNITED STATES OF AMERICA ) OCT 34 2002
v. } No. 01 GR 1049
ROBERT A. BURKE } Judge Rebecca R. Pallmeyer

On July 20, 1992, Jeffrey Erickson, a defendant on trial on bank robbery charges, attempted
te escape from federal custody. Erickson managed to unlock his handcuffs, seize an officer's
weapon and murder two security guards before turning the gun on himself. Defendant Robert
Burke has been charged with six counts of perjury in connection with his testimony before the
grand jury investigating the Erickson incident. In this opinion, the court addresses briefly Mr.
Burke’s objection to the jurisdiction of this court over him and his claim that the grand jury
proceeding was a “perjury trap.” In an order entered on Monday, October 28, 2002, the court
resolved certain pre-trial matters raised in the parties’ remaining motions.
Objection to the Jurisdiction of the Court

Jn August 1991, Burke was indicted in Chicago on bank theft charges arising in part out of
conduct in 1986 and 1987. Burke pleaded guilty on September 14, 1992, to three counts of bank
theft, and on March 3, 1993, Judge Lindberg of this court sentenced him on two of the counts to
five year custody terms, to run concurrently, foliowed by five years of supervised rélease on each
count, also to run concurrently. That same day, Judge Zage!l sentenced Burke to 14 months on
the third charge to which he had pleaded guilty, followed by 60 months of supervised release, all
to run concurrently with the sentence imposed by Judge Lindberg,

Atsome point after March 3, 1993, Burke was released to a Salvation Army facility. By July
9, 1994, he was released from that facility tc begin serving the term of supervised release. Burke

reported tc his probation officer as scheduled on August 23, 1994. Soon afterwards, Burke's father

(37


When grand jurors asked her a factual question, Ms. MacArthur immediately called the witness
back for further testimony. At the time Agent Hardgrave gave his testimony, the grand jury had
iranscripis of other witnesses’ testimony available to them. Although he testified that Burke
expected Erickson would use. the handcuff key to escape, Agent Hardgrave also explained that he
had no direct evidence that the murders and Erickson’s suicide were foreseeable to Burke. Where
Hardgrave was forthcoming in explaining what evidence the government had (and what evidence
it did not have) of Burke’s invoivementin providing a key to Erickson, the fact that Agent Hardgrave
did not simultaneously remind the grand jurors of other false leads generates no concern that the
decision to indict Burke was a product of any government violations.
CONCLUSION

For the foregoing reasons, Defendant's motion regarding the grand jury (36-1) and motion
for an evidentiary hearing (45-1) are granted in part and denied in part. His motion fo suppress
grand jury statements (Doc. No. 44-1) and motions to dismiss the superseding indictment (Doc.
44-2, 45-2) are denied. Finally, Defendant's renewed request for production of grand jury minutes
is granted in part and denied in part. His renewed request for an evidentiary hearing and renewed
motion to dismiss superseding indictment are denied.

ENTER:

Dated: October 30, 2002 Rica. Rus (one ——
REBECCA R. PALLMIEYER”
United States District q

18


.

Minute Order Fern (06957)

United States District Court, Northern District of Illinois

‘Name of Assigned Judge Releca R. Pallmeyer Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER Qo CR 1049 - 1 DATE 10/28/2002
CASE USA vs. Robert A. Burke
TITLE
Un the following box (2) indicate the party filing the motion, e.g. plaimtff, defendant, 3rd party plaintiff, and {b) state briefly the nature
MOTION: af the motion being presented.}

DOCKET ENTRY:

a)
Q
G)
(4)
(3)
(6)
(7)
(8)
(9)

(10)

ay

goaadaoaaA

Bad

immediate disclosure and for additional time (Doc. 31-2, 33-1, 34-1, 38-1) are stricken as moot. The
government’s motions to admit “other act” evidence and intricately related evidence (Doc. 97-1, 98-1,
2) are granted in part and denied in part. Its motion to admit co-conspirator statement (Doc. 106-1) is
granted, and motion to admit statements of unavailable witness (Doc. 106-2) is denied. Enter Order.

Filed motion of [ use listing in “Motion” box above.]

Brief in support of motion die

Answer briefto motion due___. Reply to answer briefdue__.
Ruling/Hearingon___setfor__—_at

Status hearing[held/continued to] [set for/re-set for]on__——ssetfor_——sat_
Pretrial conference{held/continued to] [set for/re-set for]on___—_setfor__— at

Trial[set for/re-set for] on at

[Bench/Jury trial] [Hearing} held/continued to at

This case ig dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CO Locat Rule 41.1 CIFRCP41(a)(}) [1 FRCP41(a)(2).

{Other docket entry] | Defendant’s motions for safe passage, for early return of subpoenas, for

(For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No natices required.

Notices mailed by judge's staff.

Notified counsel by telephone,

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

ETV

courtroom:
deputy’s
initials

Datetinos eoeinaitial 3 1) a
central Clerk’s Office

‘nails deputy initials



attorneys, here er abroad, ever raised the matter of an improper or unlawful sentence until AUSA
MacArthur caught the mistake and promptly brought it to the court’s attention.

Any mistake in the government's or the courts’ administration of criminal justice is improper
and regrettable. This court concludes no further hearing into this matter is appropriate or required,
however, because any improprieties in the government's efforts to extradite Burke do not constitute
a defense fo the court’s jurisdiction over him on perjury charges. Under the provisions of the
extradition treaty and the doctrine of “specialty,” the goverment was permitted to prosecute Burke
only for the offense that was the basis of his extradition. Extradition Treaty, U.S.-Gr. Brit., 28
U.S.T. 227 at art. XII (entered into force on June 21, 1977). The goverment repeatedly
acknowledged the prohibition against prosecution of Burke for other crimes in its communications
with Burke's lawyer and its submissions to the court after his extradition here. The Treaty expressly
provides, however, that the prohibition against other prosecutions does not apply io offenses
committed after the extradition. id. at XiI (2). The charges that form the basis for the superseding
indictment in-this case arise out of testimony Burke gave in the grand jury on October 2, 2001. On
that day, Burke was brought before Acting Chief Judge Kocoras and, in the presence of his
atfomey, immunized pursuant to 18 U.S.C. § 6002. Following immunization, Burke appeared
before the grand jury and answered questions concerning his knowledge of persons who may have
assisted Jeffrey Erickson's escape attempt and about whether he (Burke) had made statements
to other inmates concerning the Erickson incident. On December 5, 2001, Burke was charged with
perjury in a criminal complaint. Six days later, he was indicted on a single perjury count. On March
12, 2002, the grand jury returned a superseding indictment charging Burke with six counts of
perjury. Beyond determining that Defendant Burke has been advised of the charges against
him and conducting a fair trial, the court will not investigate the methods used to extradite him or
otherwise to bring him under the court's jurisdiction, Citing Matta-Ballesteros y. Henman, 896 F.2d
255, 259 (7th Cir. 1990), the government here urges that absent an objection from British

5


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


testimony biased the grand jury, depriving the defendant of his right to an “independent and
informed” grand jury. fd. at 942. The court therefore exercised its supervisory powers and
dismissed the indictment. In United States v. Hogan, 712 F.2d 757 (2d Cir.1983), the defendant
was convicted of conspiracy to possess with intent to distribute heroin. The prosecution presented
extensive hearsay and double hearsay to the grand jury regarding the defendant's involvement in
two unrelated murders, and his corrupt activities as a policeman. When a grand juror inquired why
the government was prosecuting the defendant if the drug deal had fatien through, the prosecutor
called the defendant a “real hoodlum,” who should be indicted “as a matter of equity.” /d, at 760.
The court dismissed the indictment in that case, based on the prosecutor's miscanduct, which the
court characterized as “flagrant and unconscionable.” /d. at 762. Assuming that Hogan and
Asdrubal remain good law, the court does not believe they require dismissal of the indictment here.
Burke does not suggest the prosecutor used improper pejorative language about him or presented
evidence concerning crimes unrelated fo the perjury charges.

Seventh Circuit cases decided since Hogan and Asdrubal confirm that an indictment may
be dismissed where the prosecutor “manipulated a grand jury by wiilfully misleading it or knowingly
presenting false evidence,” but only where defendant is prejudiced by the misconduct. United
States v. Udziela, 671 F.2d 995, 998 (7th Cir. 1982}. The Udziela court upheld denial of the
defendant's motion to dismiss the indictment where prosecutors learned only a day before the trial
that a witness had lied before the grand jury, and where there was ample additional evidence to
support the indictment. Although Burke here quarrels with the language of Agent Hardgrave’s
testimony, he does not suggest Hardgrave committed perjury, and the court does noi believe AUSA
MacArthur's conduct can be characterized as “willfully misleading.”

In United Siates v. Roth, 777 F.2d 1200 (7th Cir. 1985), the prosecutor and case agent
falsely advised the grand jury that the names of persons conspiring with the defendant were
unknown, when in fact law enforcement officers had a “strong suspicion” concerning the identity

16


reported that se had not seen his son since August and ‘did not know where he was. Ai the
government's request, the court issued a warrant for Burke's arrest on charges of violation of
supervised release, and he was a fugitive for the next four years, during which time the government
filed a new criminai compiaint against him for a fraud he had committed while at the Salvation Army
facility.

On September 4, 1998, Burke was apprehended in London and ordered detained. The
British court ordered Burke extradited on the supervised release violation but cancluded that the
fraud charge did not support extradition because English law does not recognize a comparable
criminal offense. Burke appealed the extradition order. As reflected in documents submitted by
the government and by Burke's attorneys in this case; the English authorities struggled with what
appeared to be the novel issue of whether extradition is appropriate where the individual whose
extradition is sought has already served the custodial portion of his sentence and has merely failed
to comply with the conditions of supervised release. (The government now challenges the
understanding that at the time of the appellate decision, Burke had served the custodial portion of
his senience “in full,” but acknowledges that this was the understanding af the parties during the
extradition proceedings.) Ultimately, the extradition order was upheld by the House of Lords on
appeal and on December 22, 2000, the British authorities transferred Burke to the custody of
United States Marshals. Burke's English counsel has continued to challenge the propriety of his
removal, filing a written protest with the British Home Office earlier this year. It is undisputed,
however, that to date that Office-which is, to this court’s understanding, the entity which would
assert Great Britain's objection, if any, to Burke's extradition-has neither made any such formal
objection nor otherwise sought Burke's return.

On January 9, 2001, Judge Lindberg directed the government and Burke's attorney to file
briefs on the government's motion for a rule to show cause why Burke’s supervised release should
not be revoked. Several months later, on June 26, 2001, Judge Lindberg granted the motion and

2


first reminded Burke in several ways that he was immune from prosecution for any role he might
have had in Erickson’s attempted escape, but not for any perjured testimony he might give to the
grand jury. (Transcript of Robert Burke’s Grand Jury Testimony, at 3-5.) She then praceeded to
ask him numerous questions, not only about his own potential involvement, but also that of other
inmates and guards, in obtaining a key or otherwise assisting Erickson:

Q. Did you ever talk to any other inmates prior to the escape attempt about any
ideas or plans that Mr. Erickson had . . . by way of escape?

Did you talk to any other inmates about a handcuff key?
Did you talk to any inmates about any type of key at all?

Do you know of anyone in the MCC who hid a handcuff key during the
period of time that you were there?

Q. Do you know of anyone in the MCC who had information about the hiding
of a handcuff key?

Q. Do you know of anyone who transported a handcutf key from the visiting
room to another location at the prison?

@. Did you supply the key that’s shown in the grand jury exhibit to Mr. Erickson
or anyone else at the Metropolitan Correctional Center?

Do you know of anyone who hid a key of any sort for Mr. Erickson?

Q. Do you know of anyone else who has knowledge about Mr. Erickson’s
escape attempt?

Q Do you have any knowledge of anyone other than officers bringing
contraband or other unauthorized items into the MCC in order to get them
to an inmate?

Qa Do you have any specific knowledge of any particular officers who were
involved in bringing materials to inmates during that period of time?

Q. Can you give us names of officers who you know have brought items into
the MCC on a prisoner's behalf?

Q. Do you have any knowledge that any of those individuals that you've
identified [persons involved in organized crime and gang leaders] were
responsible for bringing a handcuff key into the MCC?

Q. Did you ever hear that anyone associated with organized crime had been

8


sentence. The Probation Officer's report alse included information conceming supervised release
terms available under the relevant statutes on each of the three charges, but then noted explicitly
that the Guidelines “only pertain to Indictment No. 92 CR 51,” that is, the indictment on which
Judge Zagei sentenced Burke. Ms. MacArthur herself was on trial in another courtroom on
March 3, 1993, and was not present when Judge Lindberg imposed a sentence of five years on the
two counts before him, followed by five years of supervised release. As the government nates in
its submissions to this court, even if the Guidelines had applied to the two counts before Judge
Lindberg, a supervised release term on either count should have been no longer than three years.

Although a Guidelines sentence is arguably more severe than the appropriate pre-
Guidelines sentence, the court notes that the Bureau of Prisons treated Burke as though he had
in fact been sentenced to a pre-Guidelines term. When he had (with credit for time served since
his arrest) been incarcerated for approximately haif of his five-year sentence, he was released. On
July 8, 1994, Burke signed a Certificate of Parole reflecting his July 8 release date and the fact that
he had a total of 915 days remaining on his five-year term.

Because the extradition effort rested on Burke's violation of supervised release, the
government could arguably have had a motive to conceal the sentencing mistake until after Burke's
return to the United States. Burke offers nothing that would establish that the government had
such a motive at the time of his sentencing, however, and the government's written submissions
belie such a motive. Burke does not suggest that he acted in reliance on any sentencing mistake
in choosing to flee the jurisdiction within a few weeks of executing the Certificate of Parole. The
Probation Officer referred to Burke’s failure to report as a violation of his supervised release, and
AUSA MacArthur referred to Burke’s conduct as a violation of his supervised release in her motion
for a rule to show cause — long before she or any other government officer was aware that Burke
had left the country and that an extradition proceeding would be required to bring him back. Nor
has Burke confronted the fact that neither the probation officer, nor the courtitself, nor Burke’s own

4


and number of co-conspirators. Despite its “feeling of unease about the government's conduct,”
the court concluded the conduct did not constitute suborning perjury or any “other sort of
outrageous or intentional misconduct that would justify ordering the indictment dismissed. . . .” fd.
at 1206. Ten years later, in United States v. Anderson, 61 F.3d 1290 (7th Cir. 1995), the court
considered a record which showed that the prosecutor arguably misstated the law when he told the
grand jurors it was illegal for defendant to possess a precursor chemical. The faw in fact prohibits
such possession only where the defendant knew or reasonably believed the chemical would be
used to manufacture a controlled substance. Defendant had not properly preserved his objection
to the prosecutor's statement, but in any case the court was willing to consider the full context of
the prosecutor’s comments in reaching the conclusion that the government was relying not only on
defendani’s possession of the precursor but also on the inference that there was only one use for
the chemical, an unlawful one. fd. at 1297.

United States v. Signa Intem., Inc., 244 F.3d 844 (11th Cir. 2001), on which Burke relies,
has been vacated and is, in the words of the court that decided it, “officially gone.” United States
v. Sigma Intern., Inc., 300 F.3d 1278, 1280 (11th Cir. 2002). The court notes, however, that the
conduct resulting in a dismissal of the indictment there was far more egregious than what is before
this court. The court noted that the prosecutor had (a) implied to a successor grand jury that the
previous jury had wanted to indict the defendant, but had been prevented from doing so, (b)
presented a large amount of informal unsworn testimony himself, and (c} requested that a complex
indictment be returned in only two days. None of these circumstances are present here.

In determining whether Burke was prejudiced by any misconduct on the part of the
government, the court must cansider whether such misconduct “had an effect on the grand jury's
decision to indict.” Bank of Nova Scotia, 487 U.S, at 263. Viewed in context, the court believes
there was no such effect here. The minutes of AUSA MacArthur's comments show no more than
a straightforward and accurate statement of the law allowing grand jurors to consider hearsay.

17



at least one of the conversations in which [Grill claims] Burke and Erickson discussed future
escape plans.”
Miscellaneous Pretrial Matters

Some time ago, Burke moved for an order permitting his mother “safe passage” fo the
United States. In response, the government stated that it has no current intention to arrest Mrs.
Burke upon her arrival in the United States. The court concludes this representation renders the
motion (Doc. 32-1) moot. The court concludes, further, that both parties have met their discovery
obligations. Burke’s motions for early return of trial subpoenas and for immediate disclosure of
favorable evidence (Doc. 33-1, 34-1) and the government's motion for reciprocal discovery are also
moot, as is Burke’s motion fer an extension of time to file additional pretrial motions (Doc. 38-1).

GONGLUSION

Defendant's motions for safe passage, for early return of subpoenas, for immediate
disclosure and for additional time (Doc. 32-1, 33-1, 34-1, 38-1) are stricken as moot. The
government's motions to admit “other act” evidence and intricately related evidence (Doc. 97-1, 98-
1, 2) are granted in part and denied in part. Its motion to admit co-conspirator statements (Doc.
106-1) is granted, and motion to admit statements of an unavailable witness (Doc, 106-2) is denied.

ENTER:

Dated: October 28, 2002 Rasen. Ee. pid
REBECCA R. PACLMEYE
United States Distri 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 advice Falconer gave or failed to give him.
I. Motion for New Trial Based on Use of False Testimony

Finally, Burke moves for a new trial on grounds that AUSA William Hogan allegedly
knowingly introduced the false testimony of Chong Won Tai, who was incarcerated with Burke at
the MCC in 1991 and 1992, that he had met Burke’s parents in the MCC visiting room. Burke
insists this testimony was false and asserts that an MCC visiting room schedule demonstrates this.
Tai, housed on the 19th floor, was scheduled for the visiting room on Wednesdays, whereas 17th
floor residents inciuding Burke, were scheduled for such visits on Fridays and Sundays.’ Tai
testified on redirect examination that he was also entitled to be in the visiting room on any day for
a visit with his attorney. Burke points out, however, that visits with attorneys took place in private
meeting rooms off the main visitors area and would not afford Tai access to Burke’s family visitors.

Whatever the MCC standard schedule for visiting may have been, MCC records and Tai’s
own contemporaneous calendar notes reflect that Tai was in fact present in the visiting room on
four separate occasions: twice when Burke's parents were there, another when Burke’s mother was
there, and yet another when Burke's father was there. Defense counsel did not explore Tai’s
assertion (expressed in Tai’s uncertain English) that he was able to obtain access to the MCC
visiting room when Korean lawyers, not assigned to his case, were there to visit other inmates.
Finally, the court notes that the fact that Burke’s parents visited him is not disputed. Nor did Tai
testify that he had observed Mrs. Burke give Defendant a handcuff key; he referred to Mrs. Burke
as a “nice lady.”

Tai’s testimony was not apparently false at all, however; and Burke’s attorney amply cross-

As Government Exhibit Tai 6 reflects, Tai was also housed for a portion of 1992 on
the 21st floor of the MCC, as Tai testified in response to questions from Burke’s own attorney. But
the visiting room schedule for 21st floor residents aiso did not overlap with Burke's.

9


produced on the morning of October 28, 2002 demonsirate that Ms. MacArthur’s comments were
no more than a straightforward explanation that ‘[flirst and foremost,” the grand fury was fo
“consider this amongst yourselves,” but that in determining the existence of probable cause for an
indictment, the grand jury is entitled to consider hearsay. (Excerpt — Between Hardgrave
Testimony — Minutes Transcript of March 12, 2002, at 2.) When a juror raised with Ms. MacArthur
a question concerning interviews of Burke's parents, she immediately invited the agent to return
to the grand jury room to give further testimony. (/d. at 4.)

The court sees no evidence of impropriety here, nor does the court agree that any further
evidentiary hearing is necessary os appropriate. After reviewing the minutes, all that Burke’s own
attorney could offer was the suggestion that Ms. MacArthur should have been prompted by the
grand juror’s question to remind the grand jurors that they themselves have the right and authority
to seek non-hearsay evidence by issuing subpoenas. Burke’s counsel himself pointed out,
however, that this is a right that grand jurors rarely exercise, and there is no basis for the suspicion
that these grand jurors were unaware of their authority.

In asking the court to dismiss Count Five of the indictment on the basis of any perceived
improprieties, Burke faces a heavy burden. The Supreme Court has imposed limits on the
authority of the lower courts io exercise supervisory powers as a means of imposing preferred
Policies on grand jury investigations. United States v. Gillespie, 974 F.2d 796, 800 (7th Cir. 1992),
citing Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988); and United States v.
Williams, 504 U.S. 36 (1292). In Bank of Nova Scotia, the district court concluded that IRS agents
gave misleading and inaccurate summaries to the grand jury just prior to the indictment of the bank
and several individuals on mail and tax fraud charges, including “summaries” of evidence that had
not in fact been presented to the grand jury in prior testimony. The Supreme Court nevertheless
reversed a dismissal of the indictment, noting that the court may not look beyond the indictment
to weigh the “reliability or competence of the evidence presented to the grand jury.” 487 U.S. at

14


in response to Burke's insistence that the grand jury was convened for no purpose other than a
“perjury trap.” The caurt concludes only that the record is adequate to support the conclusion that
at the time of Burke’s testimony, the grand jury’s investigation was not limited to the issue of his
truthfulness.
Renewed Motion to Dismiss Count Five

Although the governmeni asserts that Burke’s lawyers had access to the grand jury
transcripts weil before this court requesied them, counsel devoted particular scrutiny to those
transcripts in the last days before trial. As his attorneys explained at a conference on Tuesday,
October 22, 2002, Burke is troubled by the testimony given by FBI Agent Richard Hardgrave before
the grand jury on March 12, 2002, the day that the grand jury returned a superseding indictment.
In that superseding indictment, Burke is charged not onfy with having given false testimony
concerning conversations with other inmaies, but also having given false testimony about his own
direct involvement in the Erickson escape attempt. Specifically, in Count Five of the superseding
indictrneni, the grand jury charges that Burke testified falsely when he answered these questions:

Q. Did you provide Mr. Erickson with a handcuff key?

A. No, | did not.

Q. Did you assist in any way in making a handcuff key available to any inmate

at the MCC?

A. No, I did not.
(Transcript of Robert Burke’s Grand Jury Testimony, at 15.) To prove that this testimony was in
fact perjurious, the government will have to prove that Burke did in fact furnish Mr. Erickson with
a handcuff key or assist in making it available to him. It appears that the evidence presented to
the grand jury in support of that count consists essentially of the testimony of other inmates that
Burke told them he had done so, At that March 12, 2002 grand jury session, at least one grand
juror probed the matter with Agent Hardgrave, as reflected in this question and answer:

Q. The other witnesses claimed that Mr. Burke had told him that he could get
contraband and the key from his parents bringing them into the MCC. Since

11


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:



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


‘Minae Order Form (00/97)

United States District Court, Northern District of Mlinois

7
Name of Assigned Judge Sitting Judge if Other
mt Magistrace Judge Reb - Pallmeyer than Assigned Judge
CASE NUMBER 1 CR 1049-1 DATE 10/30/2002
CASE USA vs. Robert A. Burke
i TITLE
[in the following box (a) indicate the party filing the motion, e.2., pleintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,

DOCKET ENTRY:

Notified counsel by telephone.
Dacketing 10 mail notices.
Maj] AO 450 form.

Copy to judge/magistrate judge,

ras) im Filed motion of [ use listing in “Motion” box above.]

(2) gq Brief in support of motion due

(3) Oo Answer brief to motion due . Reply to answer brief due.

(4) gO Ruling/Hearing on set for at

(5) ims Status hearing{held/continued to] [set for/re-set for] on set for. at

(6) g Pretrial conference[held/continued to] (set for/re-set for] on__set for at .

(7) im] Trial[set for/re-set for] on _ at

(8) Qo [Bench/Jury trial] [Hearing] held/continued toa

9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

CHFRCP4(m) Cl) Local Rule 41.1 COFRCP41(a)(1) 1 FRCP41(a)(2).

(0) [Other docket entry] | Defendant’s motion regarding the grand jury (36-1) and motion for an
evidentiary hearing (45-1) are granted in part and denied in part. His motion to suppress grand jury
statements (44-1) and motions to dismiss the superseding indictment (44-2, 45-2) are denied. Finally,
Defendant’s renewed request for production of grand jury minutes is granted in part and denied in part.
His renewed request for an evidentiary hearing and renewed moticn to dismiss superseding indictment
are denied. Enter Order.

adh [For further detail see order attached to the original minute order.]

No notices required, advised in open court,
‘
Na hotices required. mmmiber aC notices,

/ | Notices mailed by judge's staff,

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tossorz002
courtr ceos es save mulled node
deputy’s . ~ ev
initials ®

Date/tifie received tn =
central Clerk's Office



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


authorities, Burke has no standing to enforce extradition treaty provisions. In United States v.
Alvarez-Machain, 504 U.S. 655 (1292}, the Supreme Court did cansider the defendant's objection
to prosecution on the ground that United Siates authorities had forcibly abducted him in Mexico to
bring him before a U.S. court. The Court concluded the kidnapping was not a violation of the treaty
and reversed an order dismissing the indictment. In that case, this court notes, Mexican authorities
had filed a formal protest of the U.S. proceeding. Here, where Burke’s extradition has been upheld
on review in England, the court will not on its own explore improprieties concerning the
government's canduct in bringing Burke before the court. As the Seventh Circuit has explained:

It has long been heid that due process has been satisfied when a person fs apprised

of the charges against him and ts given a fair trial. The power of a court to try a

person is not affected by the impropriety of the method used to bring the defendant

under the jurisdiction of the court. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96

L.Ed. 541 (1952); Ker v. lilinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886).

Once the defendant is before the court, the court will not inquire into the

circumstances surrounding his presence there. United States ex rel, Caihoun v.

Twomey, 454 F.2d 326, 328 (7th Cir. 1971).

United States v. Marzano, 537 F.2d 257, 271 (7th Cir. 1976).

Burke makes much of what he deems the unusual posiure of this case and its importance
to the government. He notes, for example, that the government has never denied his assertion that
it is unusual for the United States to seek extradition of an individual guilty only of violating the
terms of supervised release. Indeed, these circumstances potentially support an inference thatthe
government sought Burke's return not because he had failed to report to his probation officer but
because the government suspected his invelvement in the Erickson episode. As Burke's lawyers
acknowledged in court, however, the govemment is “legally entitled” to file these charges, a
concession that ends the court's inquiry. Courts will not inquire into the prosecution’s motives
unless there is a showing of selective enforcement, United States v. Batchelder, 442 U.S. 114, 125,

(1979), or an attempt to discriminate by arbitrary classification, Wayte v. United States, 470 U.S.

598, 608 (1985}. See Schelfenbach v. Securities Exchange Commission, 989 F.2d 907, 912 (7th



‘Mimule Order Forsf (06/97) 2

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge seme R. Pallmeyer than Assigned Judge
CASE NUMBER 01 CR 1049 - 1 DATE 8/6/2003
CASE USA vs. Robert A. Burke
TITLE
[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
@) Oo Answer brief to motion due . Reply to answer brief due :
(4) Oo Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(a) Oo Trial[set for/re-set for] on at
(8) oOo [Bench/Jury trial] [Hearing] held/continued to at
(9) oOo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) [Local Rule 41.1 CI FRCP41(a)(1) [1 FRCP41(a}{2).
do) if [Other docket entry] | Enter Memorandum Opinion and Order. Defendant’s motion to permit
material defense witness safe passage (Doc. No. 32-1) is again denied as moot. His motion for anew trial
or for evidentiary hearing on the government’s knowing use of false testimony (Doc. No. 184-1, 184-2)
is denied. His motion for judgment of acquittal (Doc. No. 196-1) and motion for new trial (Doc. No. 187-
1) are denied.
dl) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required.
J | Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices
Mail AO 450 form A
. sctrate i as
Copy to judge/magistrate judge. sid
synod wet
courtroom ony £0 die mailed notice
ETV deputy’s . L-sH
initials oi :9 Wi AEE! ay
Date/time reeeived-in G3 \
acaba Giseecnee © raling deputy ita
oF

Tu


Minute Order Form (68/97)

United States District Court, Northern District of IHinois

Name of Assigned Judge
or Magistrate Judge

RobgeGR. Pallmeyer
»

Sitting Judge if Other
than Assigned Judge

|

. 7
CASE NUMBER Foi er 1049-1 DATE 7/12/2002 |
CASE USA vs. Robert A. Burke |
|___ TITLE |
[In the following box (a) indicate the party filing the motion, ¢.g., plaintill, defendant, 3rd parly plainiilf, and (b) state briefly she nature
MOTION: of the motion being presented. ]

DOCKET ENTRY:

qa) a Filed motion of [ use fisting in “Motion” box above.]

(2) Oo Brief in support of motion due___

(3) a Answer brief to motion due . Reply to answer brief due,

(4) oO Ruling/Hearing on set for at .

(5) a Status hearing set for 8/2/2002 at 9:30 A.M..

{6) Oo Pretrial conference{heid/continued to] [set for/re-set for] on set for at .

(7) | Trial set for 10/7/2002 at 9:30 A.M..

(8) 0 [Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OGeneraiRule2] CI FRCP41(a)(1) OI FRCP4}{a)(2).

(io) «od {Other docket entry}  Government’s motion to disqualify (26-1) is granted.

the next four weeks to assist Mr. Halprin in preparing to serve as sole trial counsel.

{For further detail see order on reverse side of the original minute order.]

qd)

disqualified from serving as trial counsel in this matter, and the court directs that he take steps within

Mr. Durkin is

No notices required, advised in open count.
s

No notices required. oro
amber of noses
V_| Notices mailed by judge's staff
Notified counse! by telephone. JUL d 93,2002

Docketing to mail notices.

Mail AO 480 form.

YK trate judge.

LYNOD LOYASIG “Sn
WAS

mane

courtroom LG 2S Hd 21 WAP S_—snenst aie
deputy’s

initials

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examined Tai on the purported inconsistencies in his testimony. The motion for a new trial on this
basis is denied.
CONCLUSION
For the reasons set forth here, Defendant's motion to permit material defense witness safe
passage (Doc. No. 32-1) is again denied as moot. His motion for a new trial or for evidentiary
hearing on the government’s knowing use of false testimony (Doc. 184-1, 184-2) is denied. His
motion for judgment of acquittal (Doc. 196-1) and motion for new trial (Doc. 187-1) are denied.

ENTER:

Dated: August 6, 2003

United States District Judge

10


October 25, 2002 each of these either related to a demonsirably false rumor that the key came
from the key ring of a deputy U.S. Marshal assigned to escort Erickson, or was consistent with the
government's theory that Burke provided the key. The court notes that the follow-up questions
asked by the grand juror, quoted above, reveal that he or she was not misled by Hardgrave, who
forthrightly acknowledged that apart from statements, the government had “no proof that Burke
himself had the key.”

Nor does the court share Burke’s suspicions about the conduct of the prosecutor in the
grand jury proceedings. At one point during Agent Hardgrave’s testimony, a grand juror referred
to testimony that Erickson had said “he wanted to escape to be with his dead wife,” and asked
Hardgrave io explain, “How's Mr. Burke going to get paid from a dead man?” (fd. at 57.) AUSA
MacArthur interrupted the answer to this question and elicited testimony that “the FBI has received
information from a variety of saurces that payment for the key may have come from sources
outside of the MCC.” (/d. at 58.) Agent Hardgrave himself explained, further, that “previous
statements : . . indicated that Mr. Burke may not have been fully aware of what Erickson meant
what [sic] he said he meant to rejoin his wife.” (id.) A few momenis later, Agent Hardgrave
amplified that answer still further, explaining:

He understood—it was my understanding that Burke knew that Erickson was going

to escape. | don’t think he expected it to turn into a gunfight in the basement of this

building. And | don’t think that if he thought it was going to be a gunfight, that

Erickson was going to kill himself at that time.

(Id. at 60.) AUSA MacArthur then invited the juror who had raised the matter whether that juror
had any follow-up question, (/d, at 59.) The juror declined to question Hardgrave on that matter
further, but the grand jury foreperson asked whether that juror had “a question with, let's say,
hearsay as opposed to testimony.” (/¢.) Agent Hardgrave’s testimony was interrupted while AUSA
MacArthur answered that question. AtBurke’s request, the court directed the government to obtain

a transcript of the minutes from AUSA MacArthur's colloquy with the grand jury. Those minutes,

13


they [Burke's parents] both denied it, was there any further investigation of
where the contraband and the key did come from, or do you assume that
that was a false statement as well?

A. Since it was based on information that we had goiten from interviews, we
had no further leads regarding where he had managed to get that from.

(Transcript of Agent Hardgrave's Grand Jury Testimony, at 63-64.) Burke characterizes this
testimony as mistaken at best and at worst, deliberately false and misleading. There were other
purported sources for the handcuff key, he points out, and Hardgrave’s “no further leads” statement
is therefore false. The impropriety was compounded, Burke urges, when a grand juror asked
Hardgrave directly, “You have any proof that Burke did have the key?” Hardgrave’s answer, and

the follow-up colloquy, were as follows:

A. Other than the particular statements that we have indicating that he did, and
we haven't had any statements form [sic] any other people indicating
anyone else.

Bui you never—

His name keeps coming up.

But you haven't had no proof that he had the key in his hand, right?

No proof that Burke himself had the key?

Yes.

That's correct.

FOPOFPO

(id. at 65-68.)

The government acknowledges that FBI agents took statements from a large number of
individuals, some of whom did provide information concerning the involvement of persons other
than Defendant Burke in furnishing Erickson with a handcuff key. Agent Hardgrave did not
intentionally misiead the grand jury, however, the government contends, because those other leads
fell apart under scrutiny. James Wells, an Inmate who told the FBI that he saw Erickson’s brother
give him the key, did not have a visiting day at the time he claimed this exchange took place and
could not have made such an observation. Similarly, records show that Andrew Traeger, who told
the FBI that he saw another inmate pass the key to Erickson in a holding pen in the MCC, was not
in fact in a holding pen on the day he claims. Burke identifies other “leads” in Exhibit B to his
renewed mation to dismiss the indictment; but, as AUSA MacArthur explained at oral argument on

12


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].” /d. 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. /d. 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.” /d. 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


revoked Burke’s supervised release; he directed the parties to file written submissions concerning
the appropriate sentence for Burke's viclation. In the process of preparing that written submission,
AUSA Diane MacArthur for the first time recognized an error in the sentence that had been
imposed on Burke in 1993: specifically, because the two charges on which Judge Lindberg
sentenced Burke arose from conduct that occurred prior to November 1, 1987, Burke’s sentence
on those charges should not have been calculated under the United States Sentencing Guidelines.
The Sentencing Guidelines were not in effect prior to November 1, 1987. For that reason, a period
of supervised release {a creation of the Guidelines) should not have been imposed on Burke at all.
AUSA MacArthur immediately notified the court and Burke's attorney of the mistake, and the
parties briefed the effect of this mistake on the gavernment’s moiion for revocation. On December
5, 2001, Judge Lindberg vacated the supervised release portion of Mr. Burke’s sentence. His
written order declared that portion of the sentence as vacated “ab initio.”

Defendant Burke is suspicious of these circumstances. In repeated submissions to the
court, he has argued that the circumstances demonstrate that the government acted in bad faith
in its efforts to extradite him and suggested that government officials knew but deliberately hid their
knowiedge that as a pre-Guidelines offender, Mr. Burke was not subject to a sentence that includes
aterm of supervised release. Ata minimum, Burke insists, the court should conduct an evidentiary
hearing to determine, in effect, “what did the government know, and when did the government
know it?” For several reasons, however, the court finds no basis to go beyond the parties’ written
submissions, which satisfy the court that although regrettable, the sentencing error and related
extradition proceedings do not reflect bad faith.

First, there is no basis to conclude the government improperly sought a Guidelines
sentence. In the Govemment's Version she submitted for sentencing, AUSA MacArthur noted that
the case was a pre-Guidelines case and made no sentencing calculations or recommendation. The
Probation Officer also utilized pre-Guidelines standards in calculating the custody portion of Burke’s

3


enna

(Reserved for use by the Court)

ORDER

Some months ago Defendant Burke moved to strike what he characterizes as
“inflammatory surplusage” in the indictment. Burke did not renew that motion and did not
object to submission of a copy of the superseding indictment to the jury. The court nevertheless
explains briefly why the motion is denied.

Burke’s motion argued that paragraphs 7 and & of the indictment improperly include
“considerable detail with respect to the exercise of Burke’s Fillh Amendment privilege.” Neither
of the paragraphs at issue makes any explicit reference to the Fifth Amendment, and paragraph 8
says nothing at all about the matter of self-incrimination. Paragraph 7 does refer to the “privilege
against sell-incrimination,” but does so in a fashion that merely explains the significance of the
Chief Judge’s Immunity Order. Under that Order, Burke was not excused from testifying. but the
government was barred from using his truthful testimony as the basis for any prosecution, See
generally United States v. Apfelbaum, 445 U.S. 115 (1980), The court concludes this language is
neither inflammatory nor unnecessary Lo the jury’s understanding of the charges.

Cetmen KS cfig—



(Id. at 15-34.) Burke could not assert that questions such as these were not “material or germane”
to the grand jury’s investigation of the Erickson matter. Cf United States v. Crisconi, 520 F. Supp.
915, 920 (D.Del. 1881); United States v. Nickels, 502 F.2d 1173, 1176 (7th Cir. 1974) (stating that
where questions posed to the witness were material to a legitimate grand jury investigation, there
can be no perjury trap). He nevertheless sees a “perjury trap” in the prosecutor's questions
because, he insists, his own story concerning Erickson's attempted escape has not changed since
he was interviewed years earlier. As the government notes, its earlier interview of Burke was far
less informed than was the inquiry made before the grand jury because inmates who have now
implicated Burke had not been interviewed at the time of Burke’s earlier statements. In any event,
it was not unreasonable for the government to explore whether the grant of immunity might move

Burke to provide more information, if not about his own activities, then at least about the

responsible for getting a handcuff key into the MCC?

Have you heard anything about anyone assisting Mr. Erickson in any way
while he was in the prison?

What rumors have you heard?

[Wihatwas the specific rumor about [Erickson’s celtmate] Sterling Smith and
any desire or situation he was faced with as it related to Mr. Erickson’s
escape attempt?

Did you ever hear any specific rumors that Mr. Smith assisted Mr. Erickson
in the escape attempt?

Did you hear any other rumors concerning other inmates and Mr, Erickson’s
escape attempt?

Did you hear thase rumors — did those rumors include reference to any
specific names?

Have you ever at any time made known the names that you had heard?
You pointed the finger at officers as being the source of getting the

coniraband into the MCC. Were inmates also able to get contraband in
through family members or other visitors?

involvement of other persons.


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.

I. 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;


UNITED STATES DISTRICT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA

)
)
wo DOCKETED ) No. 01 CR 1049
)
)

ROBERT A. BURKE OCT 28 2002 Judge Rebecca R. Pallmeyer

ORDER

Several pretrial motions remain pending in this case. This order clarifies the court's
determinations.
“Intricately Related” or Rule 404{b) Evidence

First, the government has moved for admission of certain evidence involving Burke's
contacts with inmates other than Erickson as “intricately related” evidence or as evidence of “other
acts” admissible under Rule 404(b). Specifically, the goverment seeks to introduce evidence that
in late 1991 and 1992, Burke offered to provide services in retum for cash to persons referred to
here as “Inmate A” and “Inmate C.” With respect to Inmate.C, the government expects the
evidence will show that Burke made two offers: first, that in return for $350,000, he (Burke) could
connect C with an attorney capable of improperly influencing a federal judge; and, second, that
Burke could furnish C with a handcuff key for $10,000. With respect to Inmate A, the government
expects to demonstrate that Burke offered to obtain a passport for A. He also allegedly offered to
provide Inmate A with medicine that would make him ill or otherwise support a request for a
reduction in A’s sentence, Finally, Burke allegedly told A that Burke could influence the judge in
A's case in return for $400,000.

Under Federai Rule of Evidence 404(b), the court may admit evidence of other crimes or
wrongs for purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” The parties here agree that under Seventh Circuit law,

the court must apply a four-part test for determining wheiher evidence is admissible under this

[QA



and that he faced a significant financial obligation as a result. Burke objecis to introduction of
evidence that his mother paid certain debts for him, including debts he incurred in the name of his
second wife. For reasans explained orally, this court does not believe evidence of his mother’s
assistance, even to a grown son, Is prejudicial. The court sustains Defendant's objection to any
evidence chatlenging the validity of that second marriage. The court also agrees with Defendant
that the goverment will not be permitted to use the evidence concerning Burke’s wife and mother
so as to portray him as an individual who takes advantage of or otherwise abuses women.
Co-Gonspiratory Statements and Statement of Unavailable Witness

The government has moved to admit statements of a co-conspirator referred to as Witness
A, Defendant Burke argues that if such evidence is admissible, then so also is a staternent by
inmate Michael Veysada. The court agrees. The statements of both of these alleged co-
conspirators wiil be admitted.

In addition, the government has asked the court to admit the grand jury testimony of Andrew
Grill, now deceased, who gave testimony adverse to Burke before the grand jury. For reasons
explained orally, the court sustains Burke’s objection to this testimony. Grill, a convicted felon,
gave this testimony hoping for some consideration with respect to his sentence. If he were to
testify before the jury, defense counsel would be free to cross-examine Grill concerning his criminal
record and his.reputation for honesty, and-the jury would be advised that it should consider his
testimony with “caution and great care.” Grill’s unavailability deprives Burke of his important right
of confrontation. The circumstances of Grill's death generate further concern, as they demonstrate
that Grill had not turned from a life of crime at the time he gave his grand jury testimony: Grill
commiited suicide when FB] agents were about fo arrest him for yet another bank robbery. Finally,
as Defendant Burke notes, the government did not demonstrate that the evidence Grill would offer

is unavailable from other witnesses. Grill himself testified that Sterling Smith was present “during


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


Inhale Fina 92)

United ‘oe District Court, Northern Distr f Illinois

Sitting Judge if Oth

than Assigued Judge

Name of Assigned dudge Rebegcad®? Pallmever
trate Audie

CASE NUMBER OVCR 1049-1 DATE 11/20/2002

USA vs. Robert A. Burke

[In the following bos (a) indicate the party filing dre motion, e4 if. defeneinnl. Seal party plaicity, and (b) state briefly die nature

of the nsiition being presented.)

MOTION:

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Cir. 1993}. The government’s belief that Burke had information concerning Erickson’s 1992 escape
attempt meets neither of these tests.

For these reasons, this court denied Burke’s formal objection to the jurisdiction of this court
and demand for immediate release (Doc. Na, 5-1) on October 15, 2002.

The “Perjury Trap” Argument

Apart from improprieties concerning his extradition from England, Burke has argued that
the court should dismiss the perjury charges against him because the government's conduct
constituted a “perjury trap.” The Ninth Circuit has explained that a “perjury trap” is created when
the govemment calls a witness “for the primary purpose of obtaining testimony from him in order
to prosecute him later for perjury.” United States v. Chen, 933 F.2d 793, 796-97 (9th Cir.1991).
As the cases recognize, the existence of a legitimate basis for an investigation and for particular
questions answered falsely precludes “any application of the ‘perjury trap' doctrine.” Wheel v.
Robinson, 34 F.3d 60, 67 (2d Cir. 1994), Put another way, the perjury trap doctrine has no
application in circumstances when the government elicits testimony before a grand jury that is
“attempting to obtain useful information in furtherance of its investigation”, or “conducting a
legitimate investigation into crimes which had in fact taken place within its jurisdiction.” United
States v. Brown, 49 F.3d 1162, 1168 (6th Cir. 1995), citing United States v. Devitt, 499 F.2d 135,
140 (7th Cir. 1974) and United States v. Chevoor, 526 F.2d 178, 185 (ist Cir. 1975).

There is ne dispute here that a serious crime had taken place in this jurisdiction—Erickson’s
attempted escape from federal custody and his murder of two federal officers. Defendant Burke's
“perjury trap” argument suggests that the grand jury was not conducting a “legitimate investigation”
into that crime, but the court is not persuaded. First, the questions Burke was asked were not
limited to Burke’s own potential involvement in the Erickson matter, many of them were designed

to elicit information Burke might have concerning the involvement of others. Thus, the prosecutor



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Vv. No. 01 CR 1049

ROBERT A. BURKE, Judge Rebecca R. Pallmeyer

Defendant.
MEMORANDUM OPINION AND ORDER

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.

DISCUSSION

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
teference. 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


263. More recenily, in United States v. Williams, 504 U.S. 36 (1992), the Supreme Court held that
a district court may not dismiss an otherwise valid indictment because the government failed to
disclose substantial exculpatory evidence in its possession to the grand jury. Unless the
government knew that evidence offered to the grand jury was false, there is no basis for the court
to dismiss the indictment. !n an earlier case similar to this one, United States v. Cathey, 591 F.2d
268 (6th Cir. 1979), the court concluded that the district court properly refused fo dismiss a tax
evasion indictment on grounds that an IRS agent gave arguably inaccurate testimony to the grand
jury. In Cathey, as in this case, the district court had found no evidence that the agent “‘deliberately
attempted to mislead, certainly no evidence of perjury.” /d. at 272.

Authorities that Burke cited, both in his written submissions and in oral argument on Friday,
October 24, are notto the contrary. Most of those authorities pre-date the Bank of Nova Scotia and
Williams cases. First, Mesarosh v. United States, 352 U.S. 1 (1956) did not involve grand jury
proceedings at all; there, the Court held there that false testimony given by a paid government
witness so tainted the trial that convictions of Smith Act violations had to be reversed. United
States v. Liebowitz, 420 F.2d 39 (2d Cir. 1969), did involve a challenge to an indictment that the
prosecutor obtained relying principally on hearsay, rather than available direct evidence. Defendant
appealed from his conviction on this basis, but the court was unmoved: It noted that there was no
basis for concluding the grand jury had been misled about the nature of the evidence presented
to it, ner had defendant demonstrated that with eyewitness testimony he would not have been
indicted. 420 F.2d at 42. Here, similarly, Burke has not suggested that the government had non-
hearsay evidence available to it, nor has he demonstrated that other evidence would have led fo
a different result before the grand jury on Count Five.

In United States v. Asdrubal-Herrera, 470 F.Supp. 939 (N.D. ill.1979), the prosecution
negligently presented false testimony that misled the grand jury into believing that the defendant,
who was charged with immigration offenses, was a dealer in firearms. The court held that the false

15


In Burke’s view, the court should not accept the government's representations about the
scope of the grand jury’s inquiry but should instead explore the matter by way of an evidentiary
hearing. Recognizing that exploration of grand jury activities is discouraged, United States v. Sells
Engineering, Inc., 463 U.S. 418, 443 (1983), on October 15, 2002, the court nevertheless directed
the goverment to produce for in camera review the grand jury transcripts from June 12, 2004
forward. A review of the sworn testimony confirms the court's understanding of the scope of the
grand jury's efforts. Agent Larson testified on June 12, 2001 that “the investigation [is] still ongoing
because it is the hope that you [the FBI] will be able to find out as much as you can about what
actually happened that day and who was involved besides Mr. Erickson in the escape attempt.”
(Transcript of John Louis Larson’s Grand Jury Testimony, at 22.) He asserted, further, that he still
hoped that charges might some day be brought against any person who had assisted in the escape
effort. (fd.) Agent Richard Hardgrave, who testified on March 12, 2002, regarding the “materiality”
of Burke's testimony, agreed under oath that the “the grand jury~again now or in the past-{was]
attempting to discover who was involved, how the handcuff key got in, who may have assisted Mr.
Erickson in the escape attempt or in its planning or in the smuggling of contraband in the prison.”
(Transcript of Richard Davis Hardgrave’s Grand Jury Testimony, at 40.) Hardgrave testified,
further, that it was also part of the grand jury's investigation “to determine whether Mr. Burke knew
of anyone else who may have done those things-—that is talk to Erickson, helped him, assisted him,
advised him, smuggied in a key or even hid the key once it was inside.” (fd. at 41.) A grand juror
asked one of the inmate witnesses “where he [Burke] got the key from,” specifically exploring
wheiher it was “from a guard or from another prisoner.” (Transcript of March 5, 2002 Grand Jury
Testimony of an Inmate, at 21-22.)

At trial on these charges, 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, not this court, to
decide. United States v. Gaudin, 515 U.S. 506, 5141 (1995). This court has explored the issue only

10


The United States moves to disqualify Attorney Thomas A. Durkin from further
representation of Defendant Robert Burke in an indictment for perjury. In support of this
motion, the government notes that two of Mr. Durkin’s own prior clients will be witnesses
against Mr. Burke. One of those witnesses has refused to waive privilege in order to permit Mr.
Durkin to cross-examine hirn. To address this concern, Attorney Rick Halprin has filed his own
additional appearance on behalf of Mr. Burke and represents that he alone would conduct the
cross-examination of any witness previously represented by Mr. Durkin.

Although Mr. Halprin’s appearance satisifies one concern, the government has raised a
second one: that it is reasonably likely that Mr. Durkin will be called as a witness in this case.
To demonstrate the conflict, the government has furnished the transcript of a taped telephone
conversation between Mr. Durkin and one of the prior clients who will be a witness here. In
that telephone conversation, Mr. Durkin and the client discussed the government's
investigation of the perjury charges against Burke, and the client made statements that,
according to the government, are consistent with the client’s grand jury testimony. The
government contends, and the court agrees, that the substance of that conversation will
corroborate its proof that certain statements Defendant Burke made before the grand jury were
false. Mr. Durkin’s participation in that conversaton renders it reasonably foreseeable that the
government wiil seek to call him as a witness in this case.

The dual role of an attorney as witness and advocate is disfavored. This court’s Local
Rules provide that if a lawyer “reasonably should know that the lawyer may be called asa
witness other than on behaif 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.” LR 83.53.7(b). In this case, the court notes that
the government claims Mr. Burke commited perjury by lying before the jury, not about what he
did, but about what he said to others. The conversation between Mr. Durkin and a
witness/client relates precisely to that matter: what Mr. Burke said to others. The court believes
that Mr. Durkin’s testimony concerning this conversation would in fact be prejudicial to his
client. For this reason, Mr. Durkin is disqualified from serving as trial counsel in this matter,
and the court directs that he take steps within the next four weeks to assist Mr. Halprin in
preparing to serve as sole trial counsel.

Although the Rule prohibits a lawyer who will be called as a witness from acting “as
advocate ina trial or evidentiary proceeding,” the Rule explicitly also provides that “nothing in
this rule shall be deemed to prohibit a lawyer barred from acting as advocate in a trial or
evidentiary proceedings from handling other phases of the litigation.” LR 83.53.7(c). Although
the court’s comments at the hearing on this motion suggested otherwise, this language permits
Mr. Durkin‘s continued involvement in Mr. Burke's representation and continued contacts with
him in preparation for trial. To the extent the court directed that Mr. Durkin cease all
involvement at a future date, those comments are withdrawn. The court nevertheless expects
and requests that Mr. Durkin and Mr. Halprin will promptly devote attention to bringing Mr.
Halprin fully “up to speed” on trial preparation issues. In this court's view, the “perjury trap”
arguments are legal issues that do not implicate Mr. Durkin’s status as a potential witness, and
he is not disqualified from arguing those issues to the extent they are not matters for the jury’s

consideration at trial. fined —


Rule. See United States v. Montani, 204 F.3d 761 (7th Cir. 2000); United States v. Bursey, 85 F.3d
293, 297 (7th Cir. 1996). In this court's view, with one exception, that test is met here. First, the
evidence is directed toward establishing maiters in issue other than Burke’s propensity to commit
the acts charged in this case: specifically, Burke’s motive to obtain money from other inmates and
his plans or methods for doing so. As required by the test, the other acts are similar enough and
close enough in time to be relevant here, and the court does not believe that the evidence wauld
be so prejudicial as to outweigh its probative value.

The remaining prong of the test requires the court to determine whether the evidence is
such that the jury could find by a preponderance that the other acts occurred. With respect to
Inmate C, the government asserts it will offer not only testimony but documentary proof. With
respect to Inmate A, the court notes that he reported conversations concerning the passport and
medicine in 1992, but did not describe the proposed $400,000 transaction until September 2002.
The court is suspicious of this tate disclosure, and will sustain Burke’s objection to testimony
concerning that transaction without prejudice. Before the court will admit such evidence, the court
will hear the testimony outside the presence of the jury.

Asecond motion to admit “other act” evidence describes Burke's involvement in a fraud on
the Continental Bank and the Barbary Bank. The court concludes that the details of those frauds
are inadmissible. The government is entitled to introduce evidence that Burke faced substantial
financial obligations as a result of his wrongdoing, but the manner and method in which he
defrauded banks is not “probative of Burke’s motive and method of operation in seizing upon
money making opportunities in the MCC.” (Government’s Motion to Admit “Cther Act” Evidence,
Oct. 2, 2002, at 9.) Indeed, the court is uncertain whether the government expects to introduce
details; its motion concludes by asserting that it will “present only minimal information to the jury
about the events.” With respect to this evidence, the court stands by its conclusion that, as
ordered on September 27, 2002, the jury will be advised only that Burke was convicted of a felony

2