Dave Burgess continues to await the return of his good name and his freedom.
Burgess was the outspoken President of the Nevada Nomads charter of the Hells Angels Motorcycle Club and the proprietor of a legal whorehouse called the Old Bridge Ranch near Reno, Nevada. Burgess claimed for years that our government was out to get him. And, he was probably right.
Two years ago Burgess was the victim of a “routine traffic stop.” Last summer, as a direct result of that stop, he was convicted of being so addicted to child pornography that he literally had to carry around with him “a catalogue” of 65,000 images of little children being raped. He was so addicted that he had to carry his “catalogue” across state lines. Even to Hells Angels national runs.
Burgess’ trial was very widely publicized to illustrate the kind of perverts who are inclined to join motorcycle clubs in general and the Hells Angels in particular.
A federal judge in Cheyenne, Wyoming named Alan B. Johnson found Burgess guilty of an unacknowledged “addiction” to child pornography and sentenced him to 15 years in prison, ten years of supervision upon release, lifetime registration as a sex offender and a fine of $20,000. Burgess is currently locked up in the United States Penitentiary at Lompoc, California.
Last week, after a series of delays, the argument over Burgess’ appeal was finally heard before a three-judge panel in Denver.
Burgess’ 32 page appeal brief argues that his conviction should “be reversed because it was obtained in violation of his rights guaranteed by the Fourth Amendment and in violation of his right to a fair trial. Alternatively, his sentence must be vacated and the case remanded for resentencing.”
The brief specifically argues that police, even in the cowboy states, cannot just take a computer from someone’s motor home, keep it for months and then search it to see what might possibly be there to find. The brief argues that the police have a constitutional obligation to say what they are looking for and also accuses authorities of acting in bad faith.
Burgess’ appeal also implies that the government was inventing its prosecution as it went along. One particularly damning invention was the insinuation before the jury that Burgess might have had or been contemplating an affair with a 13-year-old girl. All the government was trying to do, the brief argues, was put that idea in the jury’s mind. And, Judge Johnson was wrong when he let the prosecution get away with that.
The brief concludes by arguing that even if Dave Burgess was guilty, he was still sentenced more harshly than he should have been because Johnson misinterpreted federal sentencing guidelines.
Burgess is represented in his appeal by Norman R. Mueller. Mueller is a highly regarded criminal appeals specialist who graduated from Yale Law in 1974.
Mueller’s argument was heard by three experienced judges: Deanell Reece Tacha, Terrence L. O’Brien and Michael W. McConnell. The three judges do not have to agree. The appeal may be accepted or denied by a vote of two to one.
With all due respect to the grand majesty and overall swellness of the Tenth Circuit Court of Appeals, Burgess seems, at first glance, to be outnumbered. All three of the judges who heard his case were appointed by law and order presidents. None of them seems to have ever been described as a civil libertarian.
Tacha is a handsome, grandmotherly woman who is usually photographed with a big grin on her face. She is a former law school professor who was appointed to the court by Ronald Reagan in 1985. Terrence L. O’Brien was appointed by George W. Bush in September, 2001 but was not confirmed for four months which indicates that he might have been slightly too ideologically pure for some Democrats. The third, and possibly the most scholarly of the three jurists, is Michael W. McConnell. McConnell was also appointed by George W. Bush largely because of his moralizing and his opposition to abortion.
The argument for upholding Burgess’ conviction was presented by James Anderson, the same United States Attorney who convicted Burgess in the first place.
The time between which the oral arguments in a federal appeal are heard and the date on which a decision is finally rendered is usually about four and a half months. It is not uncommon for the long pause between the last word of the last argument and the first word of the courts reply to stretch out as long as 12 months. The Seventh Circuit, which is the most punctual circuit, usually takes about 3 months to actually decide a case.
Burgess’ fate may be decided by the Fourth of July but the court will probably wait until Labor Day to publish its opinion.