United States v. Burge, 11–1277.

• Decision Date: 01 April 2013
• Docket Number: No. 11–1277.,11–1277.
• Citation: 711 F.3d 803
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jon BURGE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

711 F.3d 803

UNITED STATES of America, Plaintiff–Appellee,

v.Jon BURGE, Defendant–Appellant.

No. 11–1277.

United States Court of Appeals,Seventh Circuit.

Argued March 29, 2012.

Decided April 1, 2013.

April M. Perry (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Richard M. Beuke, Attorney, Law Offices of Richard M. Beuke, Clarendon Hills, IL, Marc W. Martin (argued), Attorney, Marc Martin, Ltd., Chicago, IL, for Defendant–Appellant.

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Former Chicago Police Commander Jon Burge presided over an interrogation regime where suspects were suffocated with plastic bags, electrocuted until they lost consciousness, held down against radiators, and had loaded guns pointed at their heads during rounds of Russian roulette. The use of this kind of torture was designed to inflict pain and instill fear while leaving minimal marks. When Burge was asked about these practices in civil interrogatories served on him years later, he lied and denied any knowledge of, or participation in, torture of suspects in police custody. But the jury heard overwhelming evidence to contradict that assertion and convicted Burge for obstruction of justice and perjury. Burge raises several challenges to his convictions on appeal, which we do not find persuasive because the evidence shows that he lied when he answered the interrogatories, his false statements impeded an official proceeding, and they were material to the outcome of the civil case. Overall, we conclude that no errors were committed by the court and Burge received a fair trial. Finally, Burge objects to the district court's reference to a victim impact letter at his sentencing, but it is well established that hearsay is admissible at sentencing hearings, so we affirm.

I. BACKGROUND

For many years a cloud of suspicion loomed over the violent crimes section of the Area 2 precinct of the Chicago Police Department (CPD) located on Chicago's south side. Jon Burge joined the CPD in 1970 and rose to commanding officer of the violent crimes section in the 1980s, but his career was marked by accusations from over one hundred individuals who claimed that he and officers under his command tortured suspects in order to obtain confessions throughout the 1970s and 1980s. Burge was fired in 1993 after the Office of Professional Standards investigated the allegations, but he was not criminally charged. Years later the Circuit Court of Cook County appointed special prosecutors to investigate the allegations of torture, but due to statutes of limitation, prosecutors never brought direct charges of police brutality against Burge. Eventually, the City of Chicago began to face a series of civil lawsuits from victims seeking damages for the abuse they endured.

In one lawsuit filed in 2003, Madison Hobley sought damages for being physically beaten and suffocated with a typewriter cover while being interrogated at Area 2 in 1987. Hobley v. Burge, et al., No. 03 C 3678 (N.D.Ill.). Although Hobley did not allege that Burge had personally participated in his abuse, he sought to prove that the CPD had a policy and practice of torturing confessions from suspects. He also claimed that Burge was aware of this practice and requested discovery from Burge related to this policy.

During discovery, Burge responded to two sets of interrogatories regarding his involvement in alleged abuse at Area 2. Question 13 of the first set of interrogatories asked Burge to state if he had ever used or was aware of any other officers using “any form of verbal or physical coercion of suspects” including “deprivation of sleep,” “physical beatings or hangings; the use of racial slurs or profanity,” or “the use of physical objects to inflict pain, suffering or fear, such as firearms, telephone books, typewriter covers, radiators or machines that deliver an electric shock.” Burge objected to this question, but responded, “I have never used any techniques set forth above as a means of improper coercion of suspects while in detention or during interrogation.” Question 14 contained similar language to Question 13, and asked Burge to state if he was “aware of any Chicago Police Officer, including but not limited to officers under [his] command” ever using these techniques. Again, Burge objected to this question, but responded, “I am not aware of any.” Burge signed his name at the end of the last answer, but the document did not contain an oath.

Question 3 in the second set of interrogatories focused on Hobley's allegations that he was beaten and suffocated with a typewriter cover and asked whether such practices were “consistent with other examples of physical abuse and/or torture on the part of Chicago Police officers at A2 which [Burge] observed or had knowledge of.” Burge answered, “I have not observed nor do I have knowledge of any other examples of physical abuse and/or torture on the part of Chicago police officers at Area 2.” The answers from this second set of interrogatories were signed by Burge, notarized, and given under the following oath: “I, Jon Burge, after first being duly sworn, state on oath that I have read the foregoing ... and that the answers therein are true and correct to the best of my knowledge and belief.” This second set of answers was signed by Burge and given under oath.

On October 18, 2008, the government alleged that Burge's responses to the interrogatories were false and indicted him on two counts of obstruction of an official proceeding under 18 U.S.C. § 1512(c)(2)and one count of perjury under 18 U.S.C. § 1621(1). At trial, the government called multiple witnesses to testify about the methods of torture and abuse used by Burge and others at Area 2 in order to establish that Burge lied when he answered the interrogatories in the Hobley case. While the issues in this appeal do not turn on the specific details of suffering caused under Burge's watch, the witnesses at trial detailed a record of decades of abuse that is unquestionably horrific. The witnesses described how they were suffocated with plastic bags, electrocuted with homemade devices attached to their genitals, beaten, and had guns forced into their mouths during questioning. Burge denied all allegations of abuse, but other witnesses stated that he bragged in the 1980s about how suspects were beaten in order to extract confessions. Another witness testified that Burge told her that he did not care if those tortured were innocent or guilty, because as he saw it, every suspect had surely committed some other offense anyway. On June 28, 2010, the jury convicted Burge on all counts. He was sentenced to 54 months' imprisonment. This appeal followed.

II. ANALYSIS

A. Section 1512(c)(2) Obstructive Conduct Need Not Occur Before a Court

Before trial, Burge moved to dismiss Counts 1 and 3 in the indictment for failure to state an offense and he renewed the argument in a subsequent motion for judgment of acquittal. We review questions of law in a district court's ruling on a motion to dismiss an indictment de novo. United States v. Greve, 490 F.3d 566, 570 (7th Cir.2007).

Counts 1 and 3 of the indictment charged Burge with violating 18 U.S.C. § 1512(c)(2). Section 1512(c) provides:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

This section is a product of the Sarbanes–Oxley Act of 2002, Pub.L. 107–204, 116 Stat. 745, and represents a relatively new addition to the obstruction of justice statutes described in §§ 1501, 1503, 1512, and 1519.

To be liable under § 1512(c)(2), a defendant must obstruct or impede an “official proceeding.” A separate section of the statute defines “official proceeding” as “a proceeding before a judge or court of the United States ... or a Federal grand jury.” 18 U.S.C. § 1515(a)(1)(A) (emphasis added). The parties do not contest that Hobley's civil suit qualifies as an “official proceeding” within the meaning of the statute. Nevertheless, Burge contends that his conviction cannot stand because his obstructive conduct—false interrogation responses—did not occur “before” a judge.

Since Burge gave his false responses to written interrogatories and was not physically in court or being deposed, he maintains that the indictment does not state an offense under § 1512(c)(2).¹ Burge reachesthis conclusion by transplanting § 1515(a)(1)(A)'s definition of “official proceeding” into the text of § 1512(c)(2), and then reads the two provisions as one. He reasons that the proper way to interpret the word “before” when reading the two provisions together is that § 1512(c)(2) requires obstructive conduct to occur in or during the official proceeding before a judge or court. In advancing this interpretation, Burge relies on Dunn v. United States, where the Supreme Court interpreted a perjury statute, 18 U.S.C. § 1623, as applying only to “statements given in ... formal contexts,” meaning, at minimum, in depositions taken under oath. 442 U.S. 100, 111, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979) (emphasis added).

This is a novel interpretation of the statute, but one we must reject. Though § 1515(a)(1)(A) defines an official proceeding as one “before a judge or court,” it does not require that obstructive conduct occur in the same location. How do we know this? First, the phrase “before a judge or court” in § 1515(a)(1)(A) only describes which types of proceedings can be considered “official,” not where the criminal obstruction must occur. Obstruction of justice occurs when a defendant acts to impede the types of proceedings that take place before judges or grand juries. But the...