U.S. v. Burke

• Decision Date: 01 October 2003
• Docket Number: No. 02-5470.,02-5470.
• Citation: 345 F.3d 416
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leon Burke, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

345 F.3d 416

UNITED STATES of America, Plaintiff-Appellee, v. Leon Burke, Defendant-Appellant.

No. 02-5470.

United States Court of Appeals, Sixth Circuit.

Argued: August 6, 2003.

Decided and Filed: October 1, 2003.

Petition for Rehearing Denied En Banc: November 28, 2003. Pursuant to Sixth Circuit Rule 206

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ARGUED: J. Patten Brown III (argued and briefed), OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant.

Frederick H. Godwin (argued and briefed), ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

ON BRIEF: J. Patten Brown III, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant.

Frederick H. Godwin, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Plaintiff-Appellee.

Before: NORRIS, BATCHELDER, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Defendant-Appellant Leon Burke pleaded guilty to being a felon in possession of a weapon, in violation of 18 U.S.C. § 922(g). He now appeals the judgment against him and his sentence, arguing that the district court erred by conducting a suppression hearing via video-conferencing, by applying a four-level sentencing enhancement under United States Sentencing Guidelines (USSG) § 2K2.1(b)(5) for possessing a firearm in connection with another felony offense, and by applying a two-level enhancement for obstruction of justice, under USSG § 3C1.1. Finding no merit to his claims, we affirm.

Facts

In September of 1996, Tennessee state officers were investigating members of the Burke family, including two brothers, Leon Burke ("Leon") and Billy Burke ("Billy"). Together the Burkes operated Burke's General Auto Repair ("Auto Shop") in Memphis. The officers suspected that they were stealing cars, taking them to the Auto Shop, installing in the stolen cars the vehicle identification number ("VIN") plates from junked cars the Burkes purchased inexpensively at Memphis Police Department ("MPD") salvage auctions, and reselling the cars to innocent buyers. This process of exchanging the VIN plates of wrecked cars for those of stolen cars is known as "flipping."

The officers obtained a search warrant for the Auto Shop, located at 3338 Weaver Road, and for the adjacent house that Leon and Billy lived in, at 3340 Weaver Road. Inside the house they found various items that incriminated the brothers. Stowed between a refrigerator and the wall was an SKS Norinco 7.62 × 39 millimeter military assault rifle, with a 30-round banana clip magazine that held six live rounds. In a metal wall-locker in a bedroom they found a fully loaded .44 magnum Astra revolver, an unloaded Browning .22 caliber rifle, and a 12-gauge Mossberg pump shotgun that contained six live rounds in the magazine and one spent round in the chamber. The shotgun was noteworthy because, like a police assault shotgun, its shoulder-stock had been removed and a pistol grip added, so the gun could only be fired like a two-handed pistol. Also in the metal locker were four VIN plates, an envelope that said "84 Olds" and had "Leon Burke" stamped on a corner and contained a fifth VIN plate, ten applications for certificates of title, and other documents having to do with vehicle titles. Elsewhere in the house they found a book explaining how to modify certain guns to make them fully automatic, and another book describing how to make functional silencers. Behind the house, in a trailer, the officers found four more firearms. And scattered around the property were pieces of cars and stripped car bodies, some of which were pierced with bullet holes.

Four days after the search, Sergeant Farris McCarthy, the officer who had led the search, drove to the home of Jimmy Burke ("Jimmy"), another brother of Leon. McCarthy was interested in Jimmy because Jimmy held the title to a car bearing the VIN of a certain 1980 Chevrolet Impala that Leon had bought at a MPD auction, and McCarthy suspected that Jimmy's car was actually a stolen 1980 Impala into which Leon had installed the auctioned-car's VIN. McCarthy drove past Jimmy's house and saw the Impala in question parked out front, but instead of going in by himself he parked down the street and called for some uniformed officers to support him. When the uniformed officers arrived, however, the car was gone. The officers questioned Jimmy, who explained that he had bought the car from Leon, and that Leon had appeared at his house that morning and told him that he should move the car somewhere else because police were trying to track down all cars bearing the VINs of cars Leon had bought at MPD auctions. Jimmy also told the officers where he and Leon had parked the car, and there they found it — stolen and with the VIN flipped, as expected.

The following year, Tennessee convicted Leon of theft of property worth over $500, and he was sentenced to two three-year sentences, to run concurrently. Leon served his sentence and was released. Federal authorities then indicted Leon for being a felon in possession of a weapon, and both Leon and Billy for conspiring to tamper with VIN numbers and steal cars, and for actually tampering with VINs on several occasions in violation of 18 U.S.C. § 511(a).

After the federal proceedings commenced, Leon (hereinafter "Burke") filed a motion to suppress the evidence seized at his house, arguing that the search had been unconstitutional for various reasons. A hearing was scheduled, but because there was a severe shortage of judges in the Western District of Tennessee just then, it was arranged that Judge Robert Cleland of the Eastern District of Michigan would hear the case as a visiting judge. Prior to the hearing, Judge Cleland notified the parties that he would be presiding over the case from Michigan, participating in the proceedings via live two-way video, with a two-way audio feed so he could hear the parties and also talk to them, and everything else would be normal, with the parties and witnesses together in the court room in Memphis. Burke's counsel did not object until the hearing itself was underway, at which time he argued that the use of video violated what was then Rule 26 of the Federal Rules of Criminal Procedure, which provides that "[i]n all trials the testimony of witnesses shall be taken orally in open court." After discussing the objection, Judge Cleland denied it, and went on to deny the motion to suppress as well.

Burke thereafter entered into a Rule 11 plea agreement under which he agreed to plead guilty to the felon in possession charge, and the government agreed to drop the other charges against him. The agreement additionally provided that Burke could appeal the adverse suppression finding.

Judge Cleland held a sentencing hearing, in person this time. He applied a four-level enhancement pursuant to USSG § 2K2.1(b)(5) for possessing a firearm in connection with another felony (i.e., in connection with VIN flipping), a two-level enhancement pursuant to USSG § 3C1.1 for obstructing justice by telling Jimmy to move his car, and a three-level reduction for accepting responsibility, but he denied Burke's request for a downward departure. In the end, he sentenced Burke to the bottom of the Guidelines range: 78 months, plus three years of supervised release. Burke now appeals.

Analysis

I. The Propriety of Holding the Suppression Hearing Via Video-Conference

Burke argues that the judgment in this case should be reversed and the case remanded for resentencing because the district court's use of video-conferencing violated Rules 26 and 43 of the Federal Rules of Criminal Procedure, and because it violated constitutional due process. The arguments are without merit.

At the outset, we note that at Burke's video-conferenced suppression hearing, his counsel objected solely on the basis of Rule 26, and he did not mention Rule 43 or the Constitution. Consequently, we review his Rule 43 and constitutional arguments only for plain error. See Rule 52(b); United States v. Crouch, 288 F.3d 907, 909 (6th Cir.2002). To prevail on these claims, Burke must show "(1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected his substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of his suppression hearing." United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998). In evaluating Burke's Rule 26 claim, which he did timely raise, we review the district court de novo, because the claim concerns a matter of law. See United States v. Roman-Zarate, 115 F.3d 778, 781 (10th Cir.1997) ("Interpretation of the Federal Rules of Criminal Procedure is a legal issue subject to de novo review.").

A. Rule 43

We begin our analysis with Rule 43, because this is where Burke concentrates his argument on appeal, and because it is under this rule that most cases involving video-conferencing have arisen. At the time of Burke's hearing, Rule 43(a) provided that "[t]he defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule."¹ Burke's argument fails because the rule does not extend to pre-trial motions.

Four Courts of Appeals have held that video-conferencing in the context of a proceeding that is covered by Rule 43 does not satisfy the rule's requirement that the defendant be "present." See United States v. Torres-Palma, 290 F.3d 1244, 1248 (10th Cir.2002) (holding that video-conferencing at sentencing violated Rule 43); United States v. Lawrence, 248 F.3d 300, 303-04 (4th Cir.2001) (same); United States v. Navarro, 169 F.3d 228, 235-39 (5th Cir.1999) (same); Valenzuela-Gonzalez v. United States Dist. Court for Dist. of Ariz., 915 F.2d 1276, 1280 (9th Cir.1990) (finding a...