United States v. Burke, Robert A. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3483
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT A. BURKE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 1049—Rebecca R. Pallmeyer, Judge.
____________
ARGUED FEBRUARY 9, 2005—DECIDED SEPTEMBER 28, 2005
____________
Before BAUER, EASTERBROOK, and ROVNER, Circuit
Judges.
BAUER, Circuit Judge. Defendant-Appellant Robert
Burke was charged in a superseding indictment with six
counts of perjury before a grand jury, pursuant to 18 U.S.C.
§ 1623. A petit jury convicted him of all but the third count,
and he was sentenced to 20 years’ imprisonment. He
challenges both his conviction and his sentence on appeal.
We affirm his conviction but vacate his sentence and
remand for resentencing pursuant to United States v.
Booker, 125 S. Ct. 738 (2005).
2 No. 03-3483
I. Background
This case involves Burke’s efforts to disguise his role in
facilitating the failed escape attempt of fellow inmate
Jeffrey Erickson from the Dirksen Federal Building on
June 20, 1992. On November 1, 1991, Burke was arrested
for stealing money from a bank account and detained at the
Metropolitan Correctional Center (“MCC”) in Chicago. He
was assigned to the 17th floor, where he met inmates
Jeffrey Erickson, Richard Luttrell, Thomas Hogan, and
Humberto Gil-Vidarte (“Gil”). Chong Won Tai, a Korean
businessman, was an inmate on the 19th floor. Burke met
Tai in December 1991, and they socialized regularly for the
next several months. During that time, Burke offered to
have his parents smuggle into the MCC a handcuff key that
he would sell to Tai for $10,000; he also suggested to Tai
that the basement of the Dirksen building was the
best place to attempt an escape. Tai declined Burke’s offer
but found another proposal more attractive. Burke of-
fered to connect Tai with a lawyer who for $350,000 would
bribe Tai’s judge, and Tai agreed. Burke told Tai that the
attorney’s driver would swing by Tai’s wife’s house to collect
the first payment of $100,000. The driver stopped by and
Tai’s wife made the payment, but neither the attorney nor
his law firm received the money.
Burke offered to perform services for other inmates, as
well. For example, he told Gil that he could obtain a
passport for him for $25,000, but Gil declined; Burke also
offered to get Gil some bad medicine as part of a plot to sue
the Bureau of Prisons, but Gil chose not to pursue the
matter. In addition, Burke offered to bribe Hogan’s judge
for $10,000, but Hogan declined.
In June 1992, Burke passed Tai a note which stated that
“exciting things” were about to happen to Erickson. The
next month, Luttrell was visiting Erickson’s cell when
Erickson revealed a small, rounded object that he held
No. 03-3483 3
between his thumb and forefinger; he gestured with the
object and told Lutrell, “I can leave at any time.” Around
the same time, Luttrell overheard Erickson arguing with
Burke about a key being overpriced, which caused Burke to
respond: “If it wasn’t for me, you wouldn’t have it.” Gil saw
them arguing, too, and heard Erickson yell, “Don’t worry. I
am going to pay you.” He then heard Burke ask: “If you got
what you wanted, why can’t I get what I want?” When Gil
later inquired about the argument, Erickson told him that
Burke sold him something and had increased the price. Gil
asked what he had bought, and Erickson showed him a
small object with a silver shaft that he had hidden in his
shoe; Gil recognized it as a handcuff key. Erickson told Gil
that Burke had gotten the key by hiding it under a table in
the visiting room.
On July 20, 1992, Erickson was on trial at the Dirksen
building. At the end of the day, he was brought to the
building’s basement to be transported back to the MCC.
While in the elevator, Erickson freed himself from his
handcuffs. When the door opened, he overpowered a deputy
U.S. Marshal and seized her revolver. As he ran through
the garage area of the basement, he shot and killed U.S.
Marshal Roy Frakes and fatally wounded Court Security
Officer Harry Belluomini. Erickson himself was wounded,
and he shot himself in the head. A handcuff key was found
next to his body.1
Word of Erickson’s fate quickly reached the MCC. Luttrell
heard Burke boast that the escape attempt “proves that if
you want anything done in Cook County, you got to see me.”
Burke’s mood darkened, though, after he was interviewed
by the FBI as part of its investigation into the source of the
1
The government introduced evidence at trial that none of
the officers present during the escape attempt were missing
keys to the handcuffs that they carried.
4 No. 03-3483
handcuff key. Immediately after his interviews, Burke told
Tai to destroy anything he had with Burke’s name on it.
On September 14, 1992, Burke pleaded guilty in his bank
theft case and was sentenced to two concurrent five-year
terms of imprisonment and two concurrent five-years terms
of supervised release. On July 8, 1994, he was paroled after
serving approximately half of his custodial sentence. He fled
the jurisdiction in the months that followed, and on Novem-
ber 30, 1994, a warrant was issued for his arrest. On
September 4, 1998, Burke was arrested in London. Burke
fought his extradition to the United States for two years,
but the British courts ultimately ordered him extradited for
violating the terms of his supervised release.
Burke was returned to the United States on December 22,
2000. Upon his arrival, he was subpoenaed to testify before
the grand jury investigating the Erickson escape attempt.
Burke was then sent back to the MCC, where he became a
friend of inmates Fred Rock and James Taylor. Burke told
them he had gotten Erickson a handcuff key through his
mother and was supposed to receive between $5,000 and
$9,000 for it. On October 2, 2001, Burke was granted
immunity from prosecution for the escape attempt and
testified before the grand jury; he denied that he knew
anything about Erickson’s handcuff key or that he had
helped procure it.
On December 5, 2001, Judge Lindberg determined that
Burke should not have been sentenced to supervised release
for his bank theft conviction because the offense occurred
before the relevant provisions of the United States Sentenc-
ing Guidelines took effect. Pursuant to this finding, the
judge held the supervised release portion of Burke’s bank
theft sentence void ab initio, and ordered Burke’s immedi-
ate release. That same day, Burke was arrested and
charged with committing perjury before the grand jury. On
November 21, 2002, a jury convicted Burke of perjury, and
he was sentenced.
No. 03-3483 5
II. Discussion
Burke raises numerous issues on appeal. We will address
each in turn.
A. International Law Claims
Burke first argues that the district court should have
dismissed the indictment because (1) his prosecution for
perjury violated the Rule of Specialty contained in the
extradition treaty between the United States and England,
and (2) the vacatur of his supervised release sentence
undermined the basis for his extradition and thus stripped
the court of jurisdiction. We review both claims de novo.
Matta-Ballesteros v. Henman, 896 F.2d 255, 258 (7th Cir.
1990).
The jurisdictional argument confuses subject-matter
jurisdiction with jurisdiction over the person. Subject-
matter jurisdiction is furnished by 18 U.S.C. § 3231, which
covers all criminal prosecutions under the United States
Code. Personal jurisdiction is supplied by the fact that
Burke is within the territory of the United States. Whether
he came to this nation in a regular manner does not affect
the court’s authority to resolve the criminal charges against
him. See United States v. Alvarez-Machain, 504 U.S. 655
(1992). This means that we need not decide whether Judge
Lindberg was right to alter the sentence imposed before
Burke’s flight from the United States, or whether the
British judiciary acted correctly in holding that the extradi-
tion treaty called for his return to this nation.
As for the Rule of Specialty: Matta-Ballesteros holds that
extradition treaties do not create personal rights enforce-
able by criminal defendants. 896 F.2d at 259. Instead they
create rules for the relations between nations. The United
States (represented by the President and his Cabinet)
believes that the charges against Burke are proper under
6 No. 03-3483
our treaty with the United Kingdom, because the crime
for which he is being prosecuted occurred after his ex-
tradition. Article 12(2) of the relevant treaty provides that
the rule limiting prosecution to the offense for which
extradition has been granted “shall not apply to offenses
committed, or matters arising, after the extradition.”
Extradition Treaty between the United States and United
Kingdom, June 21, 1977, 29 U.S.T. 227, T.I.A.S. No. 8468.
The United Kingdom has not expressed dissatisfaction with
this view and, had it done so, diplomacy rather than
litigation would have been the way to resolve the disagree-
ment. The question for the Judicial Branch of this nation is
simply whether Burke committed the crime of which he has
been accused.
B. Perjury Trap
Burke next argues that the district court erred in denying
his motion to dismiss the indictment on hit theory that the
prosecution called him before the grand jury for the purpose
of producing perjured testimony. According to the Ninth
Circuit, a “perjury trap” is created when “the government
calls a witness before a grand jury 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
(9th Cir. 1991). We have not embraced this doctrine,
however—see, e.g., United States v. Devitt, 499 F.2d 135,
140 (7th Cir. 1974); United States v. Nickles, 502 F.2d 1173
(7th Cir. 1974)—and do not see any reason to adopt it now.
Why would a prosecutor be forbidden to give a suspect an
opportunity to commit the crime of perjury? Investigators
offer opportunities to commit many offenses and may lead
people toward their commission. Usually the offers concern
drugs, weapons, or bribery, but the principle is not limited
to these offenses. If the inducement is so powerful that it
amounts to entrapment by overcoming the will of a person
No. 03-3483 7
not already predisposed to commit the offense, while
providing the means to a person who could not have
committed the crime without assistance, then criminal
punishment is not proper. United States v. Hollingsworth,
27 F.3d 1196 (7th Cir. 1994) (en banc). But if the suspect is
predisposed to commit the offense, and could have commit-
ted it without assistance, prosecution and conviction are
appropriate. See, e.g., Mathews v. United States, 485 U.S.
58 (1988); Hampton v. United States, 425 U.S. 484 (1976);
United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985).
Burke has not raised an entrapment defense; his predispo-
sition to lie is obvious, and he did not need the govern-
ment’s aid in order to tell a lie. Indeed, it is knowledge of a
suspect’s predisposition to commit a crime that, according
to the Ninth Circuit, makes it wrongful for the prosecutor
to offer the opportunity. Yet that turns the entrapment
defense on its head, and giving the defense a new name
(“perjury trap”) does not permit a court to contravene
governing decisions such as Mathews and Hampton that
treat predisposition as permitting, rather than blocking,
criminal punishment.
Should inducement to commit perjury differ from induce-
ment to commit other offenses? Until recently some appel-
late courts held that an “exculpatory no” could not
be prosecuted as a crime, but Brogan v. United States,
522 U.S. 398 (1998), disapproved that doctrine. The court
observed that there are many ways to challenge the govern-
ment’s right to ask questions, but that lying is not among
the valid ways. Just so here: If he deemed the prosecutor’s
questions before the grand jury improper for any reason,
Burke could have refused to answer and obtained a judicial
decision on the subject. Instead he chose to lie, and he must
live with the consequences of that choice.
Another potential difference between perjury and other
crimes is that only a request for material information can
be the basis of a perjury charge. Burke does not contend,
8 No. 03-3483
however, that the prosecutor’s questions were immaterial
to a subject within the grand jury’s legitimate concern.
There is no statute of limitations for murder, so finding and
prosecuting accomplices to Erickson’s conduct was a proper
subject of an ongoing examination. That the prosecutors
knew (or thought they knew) the answers to the questions
they asked Burke does not make the information less
material. Confirming tentatively held views— or uncovering
information that will refute them—is altogether appropri-
ate. See, e.g., United States v. R. Enterprises, 498 U.S. 292
(1991). So the grand jury was entitled to seek Burke’s
knowledge. That prosecutors strongly suspected that Burke
would lie rather than reveal his knowledge does not make
the questions improper, let alone enable him to escape the
punishment that attaches to deceit when the grand jury is
entitled to hear the truth.
C. Evidence of Prior Bad Acts
Burke contends that the district court erred by admitting
evidence of his prior bad acts as proof that he committed
perjury. The evidence proffered by the government included
testimony from inmate Tai that Burke had offered to obtain
for him a handcuff key in return for $10,000 and to connect
Tai with a lawyer who could influence a judge in return for
$350,000. The evidence also included testimony from
inmate Gil that Burke had offered to obtain for him a
passport and medicine that would make him sick and thus
more likely to receive a reduced sentence. In addition, the
district court admitted evidence that Burke faced substan-
tial financial obligations as a result of his conduct prior to
incarceration, which his mother helped him pay while he
served his sentence. We review the district court’s eviden-
tiary rulings for abuse of discretion. United States v.
Williams, 238 F.3d 871, 874 (7th Cir. 2001).
No. 03-3483 9
While evidence of a defendant’s prior bad conduct may not
be admitted for purposes of showing action in conformity
therewith, it may be used to show motive or a common
scheme or plan pursuant to Federal Rule of Evidence
404(b). United States v. Montani, 204 F.3d 761, 767 (7th
Cir. 2000). We have held that evidence of prior bad acts is
admissible where:
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity to
commit the crime charged, (2) the evidence shows that
the other act is similar enough and close enough in time
to be relevant to the matter in issue, (3) the evidence is
sufficient to support a jury’s finding that the defendant
committed the similar act, and (4) the probative value
of the evidence is not substantially outweighed by the
danger of unfair prejudice.
United States v. Bursey, 85 F.3d 293, 296 (7th Cir. 1996).
Burke contends that the proffered evidence failed to
satisfy any of the above prongs and that the district court
applied the wrong standard of proof in its analysis of the
third prong.
Burke’s overarching claim is that the government’s
evidence had nothing to do with whether he committed
perjury. The district court disagreed, and so do we. In order
to prove its case, the prosecution had to demonstrate,
among other things, that Burke lied when he told the grand
jury that he never procured a handcuff key for Erickson. As
the district court noted, the prior bad acts evidence prof-
fered by the government was directed toward establishing
Burke’s motive to obtain money from inmates and his
methods of doing so. The evidence was sufficient to support
a jury’s finding that Burke had in fact made the prior offers.
Further, Burke’s prior conduct—including his offer to sell
inmate Tai a handcuff key—was similar enough and close
enough in time to be relevant to Burke’s discussions with
Erickson.
10 No. 03-3483
Burke’s primary challenge, however, goes to the standard
of proof that the district court applied in analyzing the
third-prong. The third prong of the test provides that prior
acts evidence is admissible when it “is sufficient to support
a jury finding that defendant committed [the] similar act.”
United States v. Long, 86 F.3d 81, 83 (7th Cir. 1996). The
district court interpreted that rule to mean that prior acts
evidence is admissible where the jury could find “by a
preponderance” that the defendant committed the similar
act. The court’s interpretation was consistent with the
holding in Huddleston v. United States, 485 U.S. 681 (1988),
where the Supreme Court rejected the clear and convincing
evidence standard previously applied by this and other
courts and held that the preponderance standard is appro-
priate for determining the admissibility of prior acts
evidence. Id. at 690. In Huddleston, the relevance of the
404(b) evidence hinged on a conditional fact determination.
Id. Burke argues that Huddleston is inapplicable where the
relevance of the 404(b) evidence is conditioned upon the
defendant having actually committed the similar act. He
maintains that in situations where the government proffers
evidence relating to a substantive offense that neither a
judge nor a jury had previously determined was committed,
404(b) evidence is admissible only if a jury could determine
“beyond a reasonable doubt” that the defendant commit-
ted the similar act.
The district court applied the correct standard under the
facts in this case. The government sought to introduce
404(b) evidence to establish that Burke offered to per-
form various services, not to establish that he in fact
performed those offers. Notably, Tai never accepted Burke’s
offer to obtain a handcuff key, and Gil declined Burke’s offer
for a passport and medication.2 The government did not
2
Tai did accept Burke’s offer to connect him with an attorney
(continued...)
No. 03-3483 11
introduce the evidence for the purpose of proving that
Burke performed these offers, but rather to show his
method of operation. Because Burke’s offers were not
substantive offenses, the fact that they were made did not
have to be proved beyond a reasonable doubt. However, if
we were to assume for the sake of argument that the court
applied the incorrect standard, then the error was harmless
in light of the testimony given by inmates Rock and Taylor
that Burke admitted to them that he had procured a
smuggled handcuff key for Erickson. Trial Tr. at 1625-32,
2157-60, 2257.
D. Immunity for Burke’s Mother
Burke contends that the government’s refusal to grant his
mother immunity from prosecution prevented her
from providing important exculpatory testimony on his
behalf and thus distorted the trial’s fact-finding process.3
He claims that his mother was prepared to testify that
neither she nor her deceased husband ever had conversa-
tions with Burke about bringing a handcuff key or contra-
band into the MCC. We review refusals to grant im-
munity to a defense witness for abuse of discretion. United
States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988).
The United States Attorney has authority to grant
immunity to a witness; federal courts, by contrast, play only
a ministerial role in ensuring that this power is properly
2
(...continued)
who could supposedly bribe Tai’s judge, but this service was never
performed either.
3
Burke also maintains that his mother did not testify because
the district court lulled him into thinking that the stakes at
trial were low. This argument merits no discussion in light
of Burke’s hard-fought legal battles to avoid extradition.
12 No. 03-3483
exercised. George, 363 F.3d at 671-72. Criminal defendants
have a fundamental due process right to present witnesses
who will testify on their behalf. Hooks, 848 F.2d at 799.
What is more, these witnesses must be free to testify
without fear of retaliation. See, e.g., Webb v. Texas, 409 U.S.
95, 98 (1972) (reversing a conviction where the trial judge’s
warnings to the defendant’s only witness deterred him from
testifying). The prosecutor’s broad discretion to refuse
immunity is limited by the defendant’s due process rights.
United States v. Schweihs, 971 F.2d 1302, 1315 (7th Cir.
1992). A defendant’s due process rights are violated when
the prosecutor abuses his authority to immunize witnesses
with the intention of distorting the fact-finding process. Id.
Although a federal court cannot order the government to
immunize a defense witness, courts can dismiss an indict-
ment where the prosecutor’s refusal to grant immunity has
violated the defendant’s right to due process. United States
v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir. 1988).
Burke maintains that the government’s decision to
withhold immunity from his mother denied him access to
exculpatory evidence and thus violated his due process
rights. Burke, however, has failed to make the “substantial
evidentiary showing” that is required to succeed on his
claim. Hooks, 848 F.2d at 802. As an initial matter, pros-
ecutors have significant discretion to decline immunity to a
witness, particularly one who—like Mrs. Eileen Burke—
could be charged for perjury. Id. (“It is well within the
discretion of a prosecutor . . . to decline immunity to a
witness who could be charged for false statement and
perjury.”). Moreover, as the district court observed, there is
no evidence that the government threatened Mrs. Burke or
sought to intimidate her. See, e.g., Webb, 409 U.S. at 97-98
(finding due process violation where judge singled-out
witness for lengthy admonishment of dangers of perjury).
Instead, there are indications that her decision not to testify
may have been strategic. For example, her attorney once
No. 03-3483 13
advised her to invoke her Fifth Amendment rights if
questioned about the handcuff key. Trial Tr. at 2350. She
had also made demonstrably false statements about always
visiting her son in the presence of his father which the
government could have used to attack her credibility. Trial
Tr. at 1472-73. The prosecution’s refusal to absolve wit-
nesses of their responsibility to testify truthfully does not
impermissibly distort the fact-finding process. See United
States v. Taylor, 728 F.2d 930, 935 (7th Cir. 1984) (finding
that prosecutor’s decision to revoke immunity of witness
who testified falsely was not in bad faith and thus with-
in bounds of discretion). We find that the prosecutor did not
abuse his discretion in refusing to grant Mrs. Burke
immunity.
E. Prosecutorial Misconduct
Burke argues that the government presented testimony
to the grand jury and at trial that was untrue and then
failed to correct the statements. The government’s knowing
use of false testimony, or failure to correct testimony,
violates due process. United States v. Thomas, 987 F.2d
1298, 1300 (7th Cir. 1992) (citing Giglio v. United States,
405 U.S. 150, 153 (1972)); United States v. Bontkowski, 865
F.2d 129, 133-34 (7th Cir. 1989); see also United States
v. Williams, 504 U.S. 36 (1992). However, we will not set
aside a verdict and order a new trial unless the defendant
establishes that: (1) the prosecution’s case included perjured
testimony; (2) the prosecution knew or should have known
of the perjury; and (3) there is a reasonable likelihood that
the false testimony could have affected the judgment of the
jury.” Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001).
We review the district court’s refusal to dismiss the indict-
ment or to grant a new trial based on prosecutorial miscon-
duct for an abuse of discretion. United States v. Sandoval,
347 F.3d 627, 631 (7th Cir. 2003). In conducting our
14 No. 03-3483
analysis, we must accept the district court’s findings of fact
unless they are clearly erroneous. United States v.
Balistrieri, 779 F.2d 1191, 1225 (7th Cir. 1985).
1. Tai’s Trial Testimony
Tai testified at trial that he had met Burke’s parents
three times in the visiting room of the MCC. Following his
conviction, Burke moved for a new trial. He claimed that
the government knew Tai’s testimony was false because Tai
and Burke lived on different floors of the MCC and, accord-
ing to the MCC standard schedule, had different visiting
days. The district court found that Tai had not testified
falsely because, regardless of the standard schedule, MCC
visiting records and Tai’s contemporaneous calendar notes
reflected that Tai was in fact present in the visiting room on
four separate occasions when one or both of Burke’s parents
were present. R. at 200: 9. The court offered as a possible
explanation the fact that Tai claimed to be able to visit any
time he wanted with “Korean attorneys” who had nothing
to do with his case but were often in the building. Id.; Tr. at
1115-16. In addition, the court found that there was no
likelihood that Tai’s testimony had any affect on the jury
because it was tangential to the government’s case. R. at
200: 9.
Burke argues that the only reasonable explanation for the
apparent discrepancy in the MCC standard schedule on the
one hand and the MCC visiting records and Tai’s calendar
on the other is that Tai lied, because inmate visits with
attorneys were typically not conducted in the main visiting
room. The discrepancy is mysterious, but we agree with the
district court’s conclusions. Moreover, there is no reason to
believe that Tai’s testimony had any impact on the jury
whatsoever. The comment was a brief aside that Tai made
during cross-examination that proved nothing more than
No. 03-3483 15
the fact that Burke was visited by his parents, which was
undisputed. Consequently, the court’s denial of Burke’s
motion for a new trial was not an abuse of discretion.
2. Special Agent Hardgrave’s Grand Jury Testi-
mony
Burke also claims that the district court erred in failing
to dismiss the indictment after FBI Special Agent Richard
Hardgrave testified falsely before the grand jury. A grand
juror asked Agent Hardgrave whether the FBI’s investiga-
tion had uncovered any information implicating someone
other than Burke’s parents as the source of the handcuff
key. Agent Hardgrave responded that the FBI “had no
further leads” regarding how Burke had obtained the key.
He also stated that “we haven’t had any statement from any
other people indicating anyone else” but Burke’s parents
smuggled the handcuff key into the MCC. Burke argues
that this testimony was false because several individuals
had made statements to the FBI about the possible source
for the handcuff key. The district court determined that
Agent Hardgrave had not testified falsely because the FBI
had concluded that the other leads were unreliable. R. at
137: 12-13. The court also noted that the grand jury was not
misled because Agent Hardgrave acknowledged that the
FBI had no real proof that Burke himself had the key. Id.
at 13.
Burke challenges the district court’s conclusion with
evidence of additional leads that the FBI had but which
Agent Hardgrave failed to disclose to the grand jury. For
example, statements were made that the key came from
an MCC guard named Huff and that Erickson pur-
chased the key from a person in Cicero, Illinois. We are
unpersuaded. The government obtained the information
about Officer Huff after Agent Hardgrave testified and
received the lead on the second theory only the week before
16 No. 03-3483
Hardgrave testified, which explains why Agent Hardgrave
might not have known about it. Thus, there is no evidence
that the court abused its discretion in denying Burke’s
motion to dismiss the indictment.
F. The Jencks Act Claim
Burke argues that the district court thwarted his right to
cross-examine the government’s witnesses by denying his
request for the government witnesses’ pre-sentence reports.
He maintains that the district court’s failure to produce the
reports constituted a violation of the Jencks Act, 18 U.S.C.
§ 3500, and entitles him to a new trial. We review the
district court’s denial of a motion requesting the production
of witness statements for abuse of discretion. United States
v. Wables, 731 F.2d 440, 447-48 (7th Cir. 1984).
The Jencks Act provides in relevant part:
After a witness called by the United States has testified
on direct examination, the court shall, on motion of the
defendant, order the United States to produce any
statement (as hereinafter defined) of the witness in the
possession of the United States which relates to the
subject matter as to which the witness has testified.
18 U.S.C. § 3500(b). The Act defines a statement as “a
written statement made by said witness and signed or
otherwise adopted by him.” 18 U.S.C. § 3500(e)(1). We have
recently held that the Act does not require disclosure of the
pre-sentence reports of cooperating witnesses to defendants,
as they do not qualify as “statements” within the meaning
of the Act. United States v. McGee, 408 F.3d 966, 974 (7th
Cir. 2005). Our decision in McGee also stated our commit-
ment to safeguarding the confidentiality of pre-sentence
reports. Id. at 973. We noted, however, that if a defendant
believes that a pre-sentence report contains Brady material,
he may request that the district court review the report in
No. 03-3483 17
camera to ascertain whether his suspicions have merit. Id.
at 974 (citing United States v. Anderson, 724 F.2d 596, 598
(7th Cir. 1984)).
Although it is unclear from the briefs, Burke appears
to have made a blanket request for the pre-sentence reports
of approximately 15 of the government’s witnesses. Pretrial
Trans. 10/15/02 at 17. The transcript of the pretrial proceed-
ing reveals that the district court had some misgivings
about the request and did not believe that she had author-
ity to order other judges to produce defendants’ pre-sen-
tence reports. Id. at 78. Yet, rather than close the door
completely on Burke’s request, the court directed Burke to
obtain the reports from the individual judges. Id. at 82. The
court acknowledged that this might take some time and
expressed that she might grant Burke additional time if he
needed it. Id. at 78. Although Burke’s attorney stated that
he would try to comply with the court’s order, there is no
evidence that he submitted further requests for the materi-
als. Id. at 82. In light of our ruling in McGee, the breadth of
Burke’s request, and his lack of diligence, we find that the
court’s denial of Burke’s motion was not an abuse of
discretion.
G. The Materiality of Count Two
Burke contends that Count Two of the superseding
indictment was immaterial to the grand jury’s investigation
and therefore should have been dismissed. Count
Two charged Burke with perjury based on the following
question and answer:
Q. Did you ever tell an inmate that you could smuggle
contraband into the MCC?
A. No, I did not.
R. at 21. Burke maintains that the word “ever” in the count
implicates statements that he made not only before
18 No. 03-3483
Erickson’s escape attempt, but also afterward. Because
the grand jury’s investigation was limited to crimes that
occurred “before and during Erickson’s escape attempt,” id.,
Burke argues that his statements after the escape attempt
were immaterial. Whether a statement is material for
purposes of perjury is a mixed question of law and fact
which we review de novo. United States v. Gaudin, 515 U.S.
506, 511-14 (1995).
To be perjurious, a defendant’s testimony must be
material to the grand jury’s investigation. United States v.
McComb, 744 F.2d 555, 563 (7th Cir. 1984). Materiality
in this context is broadly defined as a statement’s “effect or
tendency to impede, influence, or dissuade the grand jury
from pursuing its investigation.” Id. Even potential interfer-
ence with a line of inquiry can establish materiality. Id. The
government can establish materiality by identifying a nexus
between the defendant’s purportedly false statement and
the scope of the investigation. Id. at 564.
Rock and Taylor were inmates with Burke at the MCC
after he was extradited. They testified that Burke told them
he had smuggled the Erickson handcuff key into the MCC
several years prior. Trial Tr. at 1625-32, 2157-60, 2257. The
testimonies given by Rock and Taylor were clearly material
to the grand jury’s investigation because they spoke directly
to the issue of how Erickson escaped. By the same token,
Burke’s denial that he told Rock and Taylor that he could
smuggle contraband into the MCC was material because it
had the potential to deflect suspicion that he procured the
handcuff key for Erickson. Even though Burke made his
statements to Rock and Taylor several years after the
escape attempt, those statements related back to the time
period that was material to the grand jury’s investigation.
The district court correctly determined that Count Two was
material to the investigation and denied Burke’s motion to
dismiss that count from the indictment.
No. 03-3483 19
H. Sufficiency of the Evidence
Burke argues that the evidence presented at trial was
insufficient to sustain his convictions, particularly his
conviction for Count Five. This court reviews a jury’s
determination for sufficiency of evidence “in the light
most favorable to the government and uphold[s] a jury’s
decision if ‘any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.’ ” United States v. Albarran, 233 F.3d 972, 975 (7th
Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). We will overturn a jury’s verdict only if we find that
“the record contains no evidence, no matter how the
evidence is weighed, from which the jury could have found
guilt beyond a reasonable doubt.” Id. at 975. We review
the district court’s evidentiary rulings for abuse of discre-
tion. Williams, 238 F.3d at 874.
There is no question that the record contains sufficient
evidence in support of Burke’s conviction on each of the five
counts of perjury. There was abundant testimony that
Burke offered to smuggle into the MCC a wide range of
contraband, including handcuff keys. Further, inmates Rock
and Taylor testified that Burke told them that his mother
played a critical role in bringing into the building the
handcuff key that Erickson used in his escape attempt.
Moreover, several inmates stated that they saw and heard
Erickson and Burke arguing in the days immediately prior
to the escape attempt about a debt and the outrageous price
of an item that Burke had provided.
Burke focuses on Count Five because it required that
the jury find not merely that he told others that he had
provided Erickson with the handcuff key, but that he had in
fact procured the key for Erickson. The questions and
answers contained in Count Five read as follows:
Q. Did you provide Mr. Erickson with a handcuff key?
A. No, I did not.
20 No. 03-3483
Q. Did you assist in any way in making a handcuff key
available to any inmate in the MCC?
A. No, I did not.
R. at 21. This admission to Rock and Taylor provided the
jury with a rational basis to conclude that Burke was ly-
ing when he denied providing Erickson with the handcuff
key. Furthermore, the jury was adequately instructed
that they had to find each perjury element, including the
false nature of the declaration contained in Count Five,
beyond a reasonable doubt. We are convinced that the
government’s evidence was sufficient to support a conviction
on Count Five.
Burke also contends that the evidence was insufficient
because the government’s entire case was based upon the
unreliable testimony of inmates who stood to benefit from
cooperating with the government. Again, we disagree. It
is not the business of this court to second-guess the jury’s
credibility determinations. The jury had sufficient reason to
find that the testimony given by the government’s witnesses
was credible. Tai, Lutrell, and Hogan had all been released
from prison by the time they testified, so they had little or
nothing to gain by testifying. Also, their stories, along with
those of their fellow inmates, were corroborated. For
example, Tai, Rock, and Taylor corroborated their testimony
with contemporaneous documents that they had either
written themselves or received from Burke. Significantly,
the two sets of inmates—the first set who knew Burke at
the MCC before his initial release on parole and the second
set who met him after he was extradited—had never met
each other and had served their sentences at different
times. Despite that fact, the testimonies they gave were
remarkably consistent. For these reasons, we believe that
the government’s evidence was credible and sufficient to
support the jury’s decision to convict Burke on five counts
of perjury.
No. 03-3483 21
I. The Booker Claim
Burke argues that his sentence violated the Sixth Amend-
ment as interpreted in United States v. Booker. The district
court sentenced him to 240 months’ imprisonment pursuant
to the Sentencing Guidelines. Because Burke was being
sentenced for perjury, the Guidelines directed the district
court to apply the guideline relevant to the criminal offense
with respect to which the defendant gave false testimony.
U.S.S.G. § 2J1.3(c)(1). The court chose to apply the cross-
reference for aggravated assault, which generated a base
offense level of 15. U.S.S.G. § 2A2.2(a). The court’s applica-
tion of the aggravated assault guideline triggered additional
enhancements for more than minimal planning (2 points),
discharge of a firearm (5 points), and bodily injury
(6 points); however, the guideline capped the cumulative
adjustment for the firearm and bodily injury enhancements
at 9 points. U.S.S.G. § 2A2.2(b). That yielded an offense
level of 26, which the court reduced to 20 because Burke
was an accessory after the fact. Id. The district court then
applied enhancements for obstruction of justice (2 points,
§ 3C1.1), official victim (3 points, § 3A1.2(a)), and reckless
endangerment (2 points, § 3C1.2), as well as upward
departures for disruption of a governmental function
(2 points, § 5K2.7) and the deaths of Officer Belluomini
(2 points) and Officer Frakes (2 points). All told, the ad-
justments yielded a total offense level of 33.
Next, the district court selected a criminal history
category. The Guidelines indicated that a criminal history
category IV was appropriate because Burke committed the
offenses while under court supervision. The court, however,
believed that would significantly under-represent Burke’s
criminal past and likelihood of recidivism. Accordingly, the
court departed upward to a criminal history category V,
which—in combination with the total offense level of
33—generated a sentencing range of 210 to 262 months.
The court sentenced Burke in the middle of that range.
22 No. 03-3483
The district court stated in her sentencing memoran-
dum that the Guidelines “directed” her to apply a cross-
reference guideline. This suggests that the court applied the
Guidelines in a mandatory fashion, which we now know was
error. United States v. Castillo, 406 F.3d 806, 823 (7th Cir.
2005). Burke, however, preserved this argument below by
objecting to his sentence on the grounds that it violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), which pres-
aged Booker. Thus, we review for harmless error. United
States v. Schlifer, 403 F.3d 849, 854 (7th Cir. 2005). An
error is harmless only if it did not affect the district court’s
choice of sentence. Id. (citing United States v. Smith, 332
F.3d 455, 460 (7th Cir. 2003)). While the court gave
thoughtful consideration to its choice of a cross-referencing
guideline and indicated its approval of several of the
enhancements, the government has not established that the
court would impose the same sentence had the Guidelines
been merely advisory. See United States v. Larson, 417 F.3d
741, 746-47 (7th Cir. 2005) (recognizing that the govern-
ment bears the burden of establishing that error was
harmless). Because the court’s error was not harmless, we
vacate Burke’s sentence and remand for resentencing
consistent with Booker.
III. Conclusion
For the foregoing reasons, we AFFIRM Burke’s convic-
tion but VACATE his sentence and REMAND to the district
court for resentencing consistent with Booker.
No. 03-3483 23
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-28-05