NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL JAMES BURKE,

Defendant - Appellant.

No. 23-482

D.C. No.

4:21-cr-00062-BMM-1

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Brian M. Morris, District Judge, Presiding

Argued and Submitted March 28, 2024

Seattle, Washington

Before: WARDLAW, PARKER **, and MILLER, Circuit Judges.

Michael James Burke appeals from his convictions on two counts of 

aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153(a) and

2241(c), and one count of abusive sexual conduct, in violation of 18 U.S.C. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Barrington D. Parker, United States Circuit Judge for 

the Court of Appeals, 2nd Circuit, sitting by designation.

FILED

APR 12 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-482

§§ 1153(a) and 2244(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we 

affirm. 

We review the district court’s denial of a motion to dismiss for 

preindictment delay for abuse of discretion but review its finding with respect to 

prejudice for clear error. United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 

1992). We review de novo the sufficiency of the evidence to determine “whether, 

after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review for 

abuse of discretion the district court’s admission of testimony under Federal Rule 

of Evidence 403, Palmerin v. City of Riverside, 794 F.2d 1409, 1411, 1413 (9th 

Cir. 1986) (reviewing admission of evidence after an unsuccessful motion in 

limine); United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001) (holding that 

evidence admissible under Rule 414 is still subject to Rule 403’s balancing test), 

and its decision to impose courtroom security measures, United States v. Shryock, 

342 F.3d 948, 974 (9th Cir. 2003). Finally, we review de novo whether the district 

court violated a defendant’s Sixth Amendment right to present a defense. United 

States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). 

1. The district court did not abuse its discretion in denying Burke’s motion 

to dismiss for preindictment delay based on the four-year gap between the start of 
3 23-482

the government’s investigation and Burke’s indictment. To succeed on a motion to 

dismiss for preindictment delay, a defendant must first prove that he “suffered 

actual, non-speculative prejudice from the delay.” United States v. Sherlock, 962 

F.2d 1349, 1353 (9th Cir. 1992). While Burke generally alleges that the delay 

prevented him from developing additional witness testimony, he offers no evidence 

that the loss of that testimony “meaningfully has impaired his ability to defend 

himself.” United States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007)

(quoting Huntley, 976 F.2d at 1290).

2. A.L. and L.L.’s testimony that Burke repeatedly sexually assaulted them

is sufficient to support his conviction. Although Burke claims that A.L. and L.L.’s 

testimony about their abuse and identification of him as their abuser was

unreliable, we may not question the jury’s determination that their testimony was 

sufficiently credible to find Burke guilty. See United States v. Nevils, 598 F.3d 

1158, 1170 (9th Cir. 2010) (en banc). 

3. The district court acted within its discretion in determining that the 

probative value of testimony about Burke’s alcohol and marijuana consumption at 

A.L. and L.L.’s home outweighed its modest prejudicial effect. As the district court 

observed, testimony regarding Burke’s substance use helped set the scene by 

explaining his relationship with A.L. and L.L.’s family and how he gained access 

to his victims. Because such testimony was “necessary . . . to permit the prosecutor 
4 23-482

to offer a coherent and comprehensible story regarding the commission of the 

crime,” United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012–13 (9th Cir. 

1995), the district court correctly analyzed the evidence under Rule 403, not under 

Rule 404(b) as inadmissible character evidence.

4. The district court did not abuse its discretion in preventing Burke from 

using a complete ballpoint pen. To determine whether a security measure violated 

a defendant’s right to a fair trial, we “look at the scene presented to jurors and 

determine whether what they saw was so inherently prejudicial as to pose an 

unacceptable threat to [the] defendant’s right to a fair trial.” Holbrook v. Flynn, 

475 U.S. 560, 572 (1986). If the security measures were not inherently prejudicial, 

we “then consider[] whether the measures actually prejudiced members of the 

jury.” Hayes v. Ayers, 632 F.3d 500, 522 (9th Cir. 2011). Unlike shackling, see 

Deck v. Missouri, 544 U.S. 622, 635 (2005), wearing prison garb, see Estelle v. 

Williams, 425 U.S. 501, 503–05, 512 (1976), or compelled utterances of guilt, see 

United States v. Olvera, 30 F.3d 1195, 1197–98 (9th Cir. 1994), use of the inner 

cartridge of a pen is not inherently prejudicial. As the district court noted, it is 

unclear whether the jury could even observe Burke’s writing instrument, as he was 

seated far from the jury with a monitor in front of him. And in any case, Burke 

provided no evidence that “jurors were actually influenced by the measures he 

complains of.” Hayes, 632 F.3d at 522.
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5. The district court did not abuse its discretion in admitting J.G.’s testimony 

under Rule 414. In determining whether the prejudicial effect of Rule 414 evidence 

outweighs its probative value, we consider the following non-exhaustive factors: 

“(1) ‘the similarity of the prior acts to the acts charged,’ (2) the ‘closeness in time 

of the prior acts to the acts charged,’ (3) ‘the frequency of the prior acts,’ (4) the 

‘presence or lack of intervening circumstances,’ and (5) ‘the necessity of the 

evidence beyond the testimonies already offered at trial.’” LeMay, 260 F.3d at 

1028 (quoting Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 

2000)). The district court thoroughly analyzed the LeMay factors to determine that,

while the first four factors weighed against admission, the last factor weighed in 

favor of admission. As to the last factor, the district court found that the necessity 

of the evidence favored the government because A.L. and L.L.’s credibility would 

be at issue and the government otherwise lacked contemporaneous witnesses. It 

was reasonable, based on that analysis, to allow the government to introduce 

testimony from either, but not both, of its proposed Rule 414 witnesses. And it was 

appropriate for the government, rather than the court, to select which witness to 

present.

6. The record does not support Burke’s claim that the district court’s brief 

admonition to his counsel during closing argument to “stick to the evidence” and 

stop “testifying” infringed his fundamental right to present a relevant theory of his
6 23-482

defense. The court’s statement did not discredit the defense’s theory; the court 

objected merely to counsel’s statement that “it was easy for [A.L. and L.L.] to 

supplant [Burke’s] face in their memories over the face of their real abuser.” There 

is no evidence that Burke was forced to abandon arguments relevant to his theory 

that A.L. and L.L. misidentified Burke due to their faulty memories.

AFFIRMED.