The Federal Tenth Circuit Court of Appeals in Denver has denied Dave Burgess’ appeal of his July, 2008 conviction for interstate transportation of child pornography. Burgess was sentenced to 15 years in prison, ten years of supervision upon release, lifetime registration as a sex offender and a fine of $20,000 by a Federal District Judge named Alan B. Johnson.
Burgess is a member and former President of the Nevada Nomads charter of the Hells Angels Motorcycle Club. His current release date remains May 7th, 2021.
Basis Of The Appeal
Burgess appeal argued that his conviction was flawed by three legal defects.
The least of these defects was that Judge Johnson erred in the severity of Burgess’ sentence. The sentences of Federal offenders are determined mechanically; by drawing lines to connect numbers on a chart called the “Federal Sentencing Guidelines Sentencing Table.” Sentencing by the Table is intended to eliminate judicial inequity.
Burgess’ appeal also argued that he was actually convicted of crimes for which he was never charged: The jury was repeatedly reminded that Burgess was a Hells Angel; that he owned a licensed brothel in Nevada named the Old Bridge Ranch; and evidence was introduced at his trial that suggested to the jury that Burgess was a child molester.
Finally, Burgess argued that his arrest and conviction resulted from official, institutionalized contempt by Wyoming and Federal law enforcement for the Fourth Amendment to the Constitution of the United States.
The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Known Hells Angels Motor Home
Burgess’ predicament began like this. On the morning of July 24, 2007 he and another Hells Angel named Shayne Waldron drove Burgess’ white, Freight Liner motor home into the parking lot of a restaurant in Evanston, Wyoming. While the two men ate breakfast the motor home was either surveilled or observed by a Wyoming Highway Patrol Trooper named Matt Arnell. Arnell’s testimony about that morning has been inconsistent. In a version accepted by the Appeals Court, he “was aware (from a prior briefing) the motor home was associated with the Hells Angels Motorcycle Club.”
Arnell inspected the vehicle to find a pretext for a traffic stop and discovered that the motor home was towing a motorcycle trailer with an expired license plate. Arnell then followed the motor home out of the parking lot and onto the highway. As he followed he requested the assistance of a drug sniffing dog and handler. Then Arnell stopped the motor home.
The traffic stop was obviously premeditated and was apparently conducted as it was in order to circumvent the Fourth Amendment.
The Automobile Exception
Although the fundamental American law forbids unreasonable searches, numerous exceptions to the Fourth Amendment have been invented over the last two centuries. One of the modern police state’s favorite exceptions is called the “automobile (or “vehicular”) exception.”
In the early days of automobiles, the Supreme Court provided an exception to the Fourth Amendment for searching automobiles when a policeman reasonably suspected that the car might be carrying some contraband like moonshine. In the days before two way radios local police powers often stopped at the county line. So, unless a suspicious cop was allowed to open the case on the back seat of the car to verify that it contained bootleg whiskey, the highly mobile automobile might quickly to escape to another jurisdiction.
Eventually the Court tortured this exception into one that was based on a diminished “expectation of privacy.” In the United States versus Ross in 1982 the court ruled that, “One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects.”
When he was stopped by the police in Wyoming, Burgess was occupying a somewhat special kind of vehicle called a “motor home” which may sometimes be a residence and repository of one’s “personal effects” and at other times might be a vehicle.
The key difference between a motor home that is a vehicle and one that is a home is whether the thing is moving or it is parked. So Arnell waited until the motor home was moving and then he contrived his search.
When Nothing Is Private
Arnell claimed to smell “burned marijuana” as he approached the motor home. When the drug sniffing dog arrived it alerted and also “looked confused.” Legal precedent allows a cop to search a vehicle whenever a dog tells its handler that the vehicle contains drugs. So Arnell entered the Freight Liner.
A reasonable person might surmise that Arnell was searching for additional “intelligence” on the Hells Angels.
The Freight Liner had front and back rooms. In the back room, the bedroom, Trooper Arnell found a K-Mart shopping bag with a small wood pipe inside. Arnell later testified that he thought the pipe “smelled like” marijuana and he then observed what he thought were “traces” of marijuana in the bag.
Arnell searched all the closets and drawers and all the clothing in the motor home and found nothing. So he searched everything again. During the second search he found a piece of “tissue paper” inside a shirt. After searching the tissue paper he found what appeared to be a small amount of cocaine.
The two men were then, most ironically, advised of their “constitutional rights” and the Freight Liner was impounded and towed back to Evanston where Arnell was met by a local Agent of the Wyoming Division of Criminal Investigation (DCI), named Russell Schmitt.
Drug Users Must Be Drug Dealers
Schmitt, who has a history of cleverly worded affidavits, found a way to search everything in the motor home including Burgess’ laptop computer. Both men denied noticing the computer but a reasonable assumption may be made that the stop was contrived to search for “intelligence.” And, a good place to look for secrets is on someone’s “personal” computer.
The legal fiction the police employed to excuse their search was that people who hide personal use amounts of recreational drugs in their motor home closets when they go on vacation must be major drug dealers.
“Based upon training and experience, your Affiant knows that persons involved in trafficking or the use of narcotics and dangerous drugs often keep photographs of coconspirators or photographs of illegal narcotics in their vehicle,” Schmitt claimed in his request for a search warrant. “Your Affiant knows that paraphernalia for packaging, cutting, weighing, and using is commonly kept in the vehicle of the drug trafficker. Subjects involved often keep pay-owe sheets, and receipts of customers and subjects also involved with drug trafficking keep weapons to protect there (sic) Narcotics and drug proceeds.”
44 Day Delay
A local judge took Schmitt’s word for it. The motor home was searched again. Burgess’ laptop computer and two portable hard drives were seized and taken to the offices of the Wyoming Internet Crimes Against Children (ICAC) Team where their entire contents were to be copied and examined for evidence of drug trafficking.
Custody of the computer and drives changed at least twice and 44 days after the stop a DCI special Agent named Randall Huff began the process of acquiring (or copying) and previewing the contents of one of the hard drives using a standard software program named EnCase. As he was “previewing” the contents of this drive Huff discovered “multiple images of child exploitation.”
Soon thereafter Burgess was charged with the interstate transportation of child pornography.
The Sentencing Appeal
The actual severity of any particular offense is determined by a bureaucratic process called a “Presentencing Report.” This report tends to be an enormously subjective opinion disguised as quasi-scientific objectivity. The actual point of the report, as wise cons know, is to help prosecutors pressure defendants into plea and sentencing agreements.
Burgess has stated publically that he was pressured to betray his friends and forfeit his family business. He refused.
Coincidentally, his total offense level was calculated to be a 37 on a scale of one to 43. His offense level was enhanced, simply stated, because his crime effected a vulnerable victim – a child, because his crime was committed using a computer and because his crime effected a vulnerable victim – a child. Burgess argued that it was unfair to punish him twice with the same, vulnerable victim, enhancement and that proof of his crimes was not found on a computer but rather on a portable hard drive.
But the Tenth Circuit ruled that “The district court’s extensive and reasoned consideration of the facts and law is more than evident in the record. Burgess’ (15 year) sentence is not substantively unreasonable.”
Did Burgess Molest R.C.
At his trial, Burgess was accused of molesting a 14-year-old girl identified by the court as R.C.
The girl lives with a friend of Burgess named Rebecca Deshaise. During the trial the jury was told that, “numerous pictures of R.C. were found” on his hard drives and testimony was offered that “R.C. had spent many hours at Burgess’ home over the years.”
The jury also was told that, “among the pictures were nude and seminude images of her (some showing her exposed genitalia), which also contained lurid text suggesting Burgess was the photographer and/or describing inappropriate sexual contact between R.C. and ‘Uncle David.'”
“The images” the Appeals Court notes, “are clearly child pornography. They show a pre-pubescent girl wearing nothing but a light dress pulled up over her chest: Exhibits 805-808 show the nude child in various poses centering on her genitalia. One image shows her with an adult male.”
“These exhibits,” the court continues, “include one nude image of R.C. taking a shower and several semi-nude pictures of R.C. dressed only in a towel. The images appear with graphic and vulgar superimposed text. For example, one image is R.C. sitting cross-legged on a bed wearing only a short towel (genitalia exposed) with superimposed text referring to ‘Uncle David’s . . . Princess.’ The nude shower image contains the superimposed statement, ‘I think this is one of the sexiest pictures in my collection.'”
In 1955, the Russian writer Vladimir Nabokov, wrote a sensational novel named Lolita. The book is the tale of a ridiculous, middle-aged man named Humbert Humbert who becomes obsessed with a sexually precocious girl. The story was translated into motion pictures by the esteemed director Stanley Kubrick in 1962 and the less esteemed director Adrian Lyne in 1997. Time magazine named Lolita one of the hundred best novels of the century.
Lolita is a cogent tale and prosecutors like to tell juries cogent tales. Part of the story’s cogency is that even if you have never heard of Humbert Humbert you know who he is. You can picture him in your mind. You can easily imagine him. He is an archetype. And, during Burgess’ trial the prosecutor, James C. Anderson, encouraged the jury to think of Burgess as Humbert Humbert. In his appeal Burgess’s argued that that portrayal helped convict him.
Burgess has never been charged with molesting R.C. Numerous witnesses testified that Burgess would not and could not have molested the girl. Rebecca Deshaise testified that Burgess never had the opportunity to commit that crime. No evidence was ever offered to suggest that Burgess had actually captioned the lurid photos of R.C. or that he actually took the photos or that he knew they were on his portable hard drives.
Was The Jury Prejudiced
But the prosecution told the jury the compelling story of the middle aged man and the sexually precocious girl anyway. Burgess’ appeal included an objection to the introduction of that accusation. And, in the end the Tenth Circuit decided that implying that Dave Burgess was Humbert Humbert was fair.
The prosecution’s portrayal of Burgess may, the court wrote, have been “more prejudicial than probative and allowed the jury to convict Burgess, not for possession and transportation, but for other uncharged crimes.” But if so, in the court’s opinion, the interests of justice dictate it couldn’t be helped. Fairness, the court sagely notes, “is often a matter of perspective.” Consequently, the court ruled, “the evidence (that Burgess might have been molesting R.C.) was relevant and proper.”
The Automobile Exception
Even if Dave Burgess is, as the prosecution portrayed him, the Hells Angel named Humbert the means by which his obsession was publically exposed would seem to a non-jurist to be appallingly un-Constitutional.
In his appeal Burgess contended that “the application of the automobile exception to search the computer and hard drives found in his motor home would grant police ‘the authority to forensically analyze and conduct a general search of any computer found in any automobile which was subject to a valid search under the automobile exception.’ …because of the amount of personal information stored within, Burgess argues it is a virtual home. He says in this ‘age of the laptop computer,’ such an ‘extraordinary expansion’ of the automobile exception would ‘destroy a citizen’s expectation of privacy in his or her computer.'”
The Tenth Circuit gutlessly ducked the issue of whether a personal computer is actually, legally personal whether it is in a car or not. “Interesting as the issue may be,” the court squawked, “we need not now resolve it because the search of Burgess’ hard drives was authorized by a warrant.”
Police May Search Anywhere
“The pertinent documents,” that led to the computer search, the court concedes, “could have been more artfully prepared.” The search warrant authorized the search of “computer records” that confirmed Burgess’ participation in drug trafficking and the DCI “was only looking” for that when it instead found child pornography. The court was very impressed that the forensic examiner only looked at a few of the pornographic images before pausing to get a new search warrant authorizing a search for what he had already found.
This ruling on Burgess’ appeal makes law. The Tenth Circuit has now ruled that any contrived excuse to search a personal computer found in a vehicle, no matter how specious that excuse might be, allows a search of the entire contents of that computer.
“In the end,” the court concludes, “there may be no practical substitute
for actually looking in many (perhaps all) folders and sometimes at the documents
contained within those folders, and that is true whether the search is of computer
files or physical files.”
So criminal justice in America has become a little more like a crooked carnival game where law sharps prey on the rubes. And, Dave Burgess may never be free. And, we are all a little less free.