U.S. v. Burke

• Decision Date: 28 September 2005
• Docket Number: No. 03-3483.,03-3483.
• Citation: 425 F.3d 400
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert A. BURKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 400

425 F.3d 400

UNITED STATES of America, Plaintiff-Appellee, v. Robert A. BURKE, Defendant-Appellant.

No. 03-3483.

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2005.

Decided September 28, 2005.

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Diane MacArthur (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael B. Nash (argued), Thomas A. Durkin, Jodi L. Gravey, Durkin & Roberts, Chicago, IL, for Defendant-Appellant.

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, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

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 offered 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 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 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 November 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 Sentencing 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 immediate 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.

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, 112 S.Ct. 2188, 119 L.Ed.2d 441 (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 extradition 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 enforceable 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 our treaty with the United Kingdom, because the crime for which he is being prosecuted occurred after his extradition. 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 disagreement. 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 his 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. Nickels, 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...