United States v. Burgess

Decision Date11 July 2012
Docket NumberNo. 09–4584.,09–4584.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Albert Charles BURGESS, Jr., Defendant–Appellant. Vicky, Child Pornography Victim, Amicus Curiae.
CourtU.S. Court of Appeals — Fourth Circuit

OPINION TEXT STARTS HERE

ARGUED:James Stephens Weidner, Jr., James S. Weidner, Jr. Attorney, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. Paul George Cassell, University of Utah College of Law, Salt Lake City, Utah, for Amicus Curiae. ON BRIEF:Lisa S. Costner, Lisa S. Costner, P.A., Winston–Salem, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee. James R. Marsh, Marsh Law Firm PLLC, White Plains, New York; Carol L. Hepburn, Carol L. Hepburn PS, Seattle, Washington, for Amicus Curiae.

Before GREGORY, KEENAN, and WYNN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KEENAN wrote the opinion, in which Judge WYNN joined. Judge GREGORY wrote a separate opinion concurring in part, dissenting in part, and concurring in the judgment.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

A jury convicted Albert C. Burgess, Jr., of two felonies involving the receipt and possession of materials depicting minors engaged in sexually explicit conduct. The district court sentenced Burgess to a term of 292 months' imprisonment, and to supervised release for life. The district court also ordered that Burgess pay, among other things, restitution of $305,219.86 under the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259 (the restitution statute), for losses suffered by “Vicky,” a child victim portrayed in pornographic material in Burgess' possession.

Burgess challenges both his convictions and sentences on appeal. We affirm his convictions and all aspects of his sentences, except the district court's award of restitution to the victim. Because the district court did not make specific findings regarding the elements of restitution, we vacate the restitution award and remand the case to the district court for a calculation of the loss Burgess proximately caused the victim.

I.

Burgess was identified as a consumer of child pornography during an investigation by Immigration and Customs Enforcement (ICE) into websites that offered such content to paying customers. Federal authorities linked Burgess to an offending website using payment information that he had supplied. ICE agents later obtained a search warrant for Burgess' residence in Hendersonville, North Carolina.

The ICE agents executed the search warrant on March 6, 2008. The search was a joint effort of ICE, the United States Postal Inspection Service (U.S.P.I.S), the North Carolina State Bureau of Investigation, and the Henderson County Sheriff's Department. In their search for evidence related to the exploitation of children by use of the internet, the authorities located a personal computer and 327 compact discs. Later forensic analysis determined that the 327 compact discs contained a total of 784 video recordings and 4,614 images of child pornography. Burgess' personal computer contained an additional seven video recordings and 121 images of child pornography.

Although Burgess was not present during the search, the Sheriff's Department located his automobile while the warrant was being executed and initiated a “traffic stop.” Detective Patricia Redden, of the Henderson County Sheriff's Department, and Inspector Lisa Holman, of the U.S.P.I.S, then interviewed Burgess, who agreed to waive his Miranda rights. Although Burgess refused to answer questions regarding his internet activity, he admitted that he was the only user of the personal computer located in his residence.

At the same time the interview was taking place, the federal agents continued the search of Burgess' residence, and informed Redden that they had located child pornography on Burgess' electronic data storage devices. At that time, Redden told Burgess that he would be charged with third-degree sexual exploitation of a minor under North Carolina law. Redden transported Burgess to the state magistrate's office, obtained an arrest warrant, and escorted Burgess to the Henderson County jail.

While Burgess was awaiting admission to the jail, Redden asked him if he wished to continue speaking with her. She informed him again of his Miranda rights and told him that he could stop answering questions at any time. Burgess, looking down at a copy of the arrest warrant, stated, “You've got me.” He admitted to viewing child pornography between two and three times per week, and also informed Redden that he knew of significant child pornography trafficking operations in Russia and the Philippine Islands (the Philippines).

On March 7, 2008, while released on bond, Burgess placed a telephone call to Redden stating, “Well, I've got to help myself. I've got to talk to somebody.” He agreed to speak with ICE Agent Patrick Wilhelm and Inspector Holman. Burgess met with the federal agents at his home three days later, signed a statement waiving his Miranda rights, and provided details regarding his pornography sources in Russia and the Philippines. It was Burgess' understanding that the federal authorities would use the information and email addresses he had provided to assist in the investigation of these internet pornography sources. Burgess was under the impression that he was bargaining with the federal agents, and later testified to this effect, stating: “You know, you've got to give [the government] something before they can give you something. You can't sit there, you know, and extract something from them.” Burgess also confessed to the federal agents that he viewed child pornography for five hours per day while masturbating, and that he did so to prevent himself from actually committing offenses on a child.

Burgess was required to appear in state court on March 28, 2008. He failed to appear, and was arrested by the United States Marshal's Service in Virginia on June 10, 2008. Burgess' bond was revoked and, during the time he remained in state custody, a federal grand jury returned a two-count indictment against him on March 17, 2009. The following day, a federal warrant was issued for his arrest.

On March 23, 2009, the government filed an application for a writ of habeas corpus, seeking Burgess' transfer from state custody to federal court for an initial appearance on his federal charges. Burgess made his initial appearance on April 14, 2009, and he was remanded for the first time to federal custody. 1

Burgess was indicted for (1) knowingly possessing visual materials depicting a minor engaging in sexually explicit conduct, which were shipped in interstate commerce via computer, in violation of 18 U.S.C. § 2252(a)(4)(B); and (2) knowingly receiving visual materials depicting a minor engaging in sexually explicit conduct, which were shipped in interstate commerce via computer, in violation of 18 U.S.C. § 2252(a)(2). He was tried before a jury in November 2009, and was convicted on both counts.

The presentence report calculated a guideline range of imprisonment of between 292 and 365 months. Burgess, who was proceeding pro se at his sentencing, made a number of objections to the presentence report. Pertinent to this appeal, Burgess objected to a four-level sentencing enhancement, pursuant to U.S.S.G. § 2G2.2(b)(4), for possession of images portraying sadistic and masochistic conduct in the sexual exploitation of children. He also objected to a five-level sentencing enhancement, pursuant to U.S.S.G. § 2G2.2(b)(5), for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. After considering Burgess' objections, the district court adopted the findings of the presentence report. The district court imposed a sentence of 240 months' imprisonment with respect to Count 1, and a sentence of 292 months' imprisonment with respect to Count 2, to be served concurrently.

Pursuant to the restitution statute, the government submitted a request for restitution on behalf of Vicky,2 a victim of child sexual exploitation portrayed in the materials seized from Burgess' residence. Noting that 18 U.S.C. § 2259 mandated an award of restitution, the district court ordered that Burgess compensate Vicky in accordance with the government's request, in the total amount of $305,219.86.

II.

Burgess raises two challenges to his pretrial detention. First, he asserts that the federal government violated the Speedy Trial Act, 18 U.S.C. § 3161 et seq., by failing to indict him within 30 days of his being taken into custody. Second, Burgess argues that his Sixth Amendment right to a speedy trial was violated, because he was indicted on federal charges more than a year after federal authorities executed a search warrant at his residence and state authorities first took him into custody. Upon our review, we find no merit in either argument.

A.

The Speedy Trial Act provides, in relevant part:

Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.

18 U.S.C. § 3161(b) (emphasis added). We review the district court's interpretation of the Speedy Trial Act de novo, and any related factual findings for clear error. United States v. Rodriguez–Amaya, 521 F.3d 437, 440 (4th Cir.2008).

Burgess was indicted on the present charges on March 17, 2009. Thus, the Speedy Trial Act would have been implicatedif Burgess had been arrested or served with a summons in connection with the present charges more than 30 days prior to March 17, 2009. See18 U.S.C. § 3161(b). However, Burgess was not transferred from state custody to federal custody until March 24, 2009, a week after the federal authorities...

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