Burgess’ Appeal Denied

August 17, 2009

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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.

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38 Responses to “Burgess’ Appeal Denied”

  1. JAMES Says:

    Whether or not those images were on his hardrive and or computer, I have a hard time with any vehichle, car, truck, motorhome etc. being stopped for trailering any vehihicle, motorcycle, or any streetable object on a trailer with out of date tags . There are millions of collectors towing unregisterd items to and from place to place in order to scrap or to restore.I can’t count the time I have towed vehicles that have been setting for years to be trailered from place to place.Sounds like they were just looking for a reason to detain and search.81 or not this is surely a tragedy.

  2. JAMES Says:


  3. Izzy Wildheart Says:

    A`sad day indeed when the girl herself and numerous witnesses stand in Dave’s favour, but still the facts are ignored. It’s an outrageous miscarriage of justice yet again. I hope eventually the truth will out for Dave, Brian Brewer and Leonard Peltier to name but a few men incarcerated on false charges.
    “A prayer for the wild at heart kept in cages”

  4. FTF Says:

    No matter what happens or happened in this case the public is again missing the warning signs here, buried beneath accusations of “Hell’s Angels”, “child porn”, and other smoke designed to hide facts is the truth…. The 4th amendment as well as pretty much our entire constitution is being shit on by the FED, and the puppet judges who preside over cases and make decisions like this one here. The fact that the public doesn’t see this is just another saddening reminder of how big of a shit hill this country is allowing itself to be buried under.

  5. WhiteDevil Says:

    Why have the facts of the case changed as reported here-first it was a government conspiracy-now there’s pictures of a young girl who was in this dudens house regularly

  6. DirtyBruin Says:

    A wise precaution: http://www.truecrypt.org

    Even if you have nothing remotely incriminating on your computer – encrypting the hard drive means that no one can ADD anything incriminating to it, either.

  7. Rebel Says:

    Dear White Devil,

    Yeah, I hear you. I don’t like it either. I am also pretty sure the feds do not want me to like it. That is why it featured so prominently in Burgess’ prosecution.

    There clearly and absolutely was a government conspiracy to get Burgess for something. Trooper Arnell lurking around the motor home in a parking lot is suspicious. Did he rub marijuana on the motor home so the dog would alert? The stop was bogus. The search was bogus. The affidavit was a lie. The warrant was, in my opinion, unconstitutional. The tenth circuit disagrees with me, I know. The 44 day delay between seizing the portable hard drives and looking at them is astounding. It sure looks to me like Burgess was framed.

    In the age of “sexting” there are multiple plausible explanations for how the pictures of R.C. came to be on Burgess’ hard drive. I am suspicious of the lame and creepy captions that were super imposed over the photos. My gut instinct is that a cop wrote them.

    I think it comes down to who and what you believe. I distrust “professional” cops. (I never had any problems with Sheriff Andy. Never been hassled in Mayberry.) I think the Burgess case started with multiple lies told by authorities and I do not know when that lying stopped. I am inclined to think it is continuing.

    Maybe Dave Burgess is a lame creep. I do not know. But people who know him well testified that he is not. And, people I trust much more than the police seem to think he is not lame and not a creep. Maybe I am naive. Maybe I am wrong. Even when I am wrong it is tough to get me to shut up. I know. Believe me, I know.

    I think Dave Burgess was framed. I think he was framed to punish him for his anti-authoritarian attitude, to settle long standing beefs with the federal police and most of all to embarrass the Hells Angels Motorcycle Club.

    It is an embarrassing case to even contemplate. I know how you feel. Thanks for commenting. Feel free to disagree with me anytime.

    your pal,

  8. Not Surprised Says:

    This is a tough one not just for me, but a lot of people. Traditionally, an appeal doesn’t try to deal with guilt or innocence, just proecdural law and nothing that was NOT originally cited, noted, objected to, or dealt with in the jury trial can make its way before the court during an appeal.

    This entire episode has been a farce since day one. You don’t even have to know Dave Burgess to see that.

    99% of all court appointed attorneys urge their clients to accept a plea. Few rarely consider such trivial things as innocence or guilt, and they know that down the road, both the courts and their colleagues will accept that they “did their best” but the client INSISTED on going to trial as if doing so was wrong somehow.

    Ray Charles could see this was a set up. None of that however, benefits Dave Burgess. But I wouldn’t count him out just yet. Though it does happen, innocent people rarely plea bargain. Not in cases like this. Not someone like him.

    By the way, no single person in the entire history of US jurisprudence has ever been found with over 50,000 indivdual images of child pornography. Ever. The only thing that comes close to this is the FBI database and the one Interpol keeps and these are accessed only by maybe 100 people in the world.

    It is virtually statistically impossible to have occured as the Govt says it did. Think trying to purchase, by yourself, 50,000 hand grenades. A MAJOR child porn “ring” involves a minimum of 4 people and nets back maybe, MAYBE 4-600 images.

    Mr. Burgess did not have full benefit of adequate counsel. His attorney called no “expert witnesses”, no computer forensics, no optics experts-in other words only real professionals could have made a clear and convincing argument that the odds of this much mterial ending up on a single hard drive are equal to a hurricane blowing through a junk yard and self-assembling a fully operable Boeing 747. I don’t care who it was, it just isn’t in the realm of probability.

    And then why wouold a “big target” (not my choice of words but the Feds sure felt that way) chunk something like that into his personal vehicle? A vehicle, not unknown to many involved LEO in several states AND towing a trailer with tags that were obviously expired and believe me Dave Burgess probably knows as much “law” as some attorneys. It would be like walking trhough an airport with a sign on your back saying “Hey, I gotta gun”.

    It did not happen. Who would, in their wildest imagination,would assume that anyone capable of amassing 50,000 images of child porn would be dumb enough to chuck into a vehicle registered in his own name and head out across the open road to the most publicized annaual event the club attends, KNOWING that not only are the chances good of a bull shit stop because of who he is, but ALSO not even worrying about the expired tag which was in fact going to be rectified later on that very day?

    Listen, I’ve been “caght” and I was in fact guilty. I knew it and planned every way possible to get out of it. But I have also been the target of a well orchestrated set up, and I can tell you nothing is more unsettling. I dont mean falsely accused by a citizen or LEO, I mean deliberately being lied about, evidence being “manufactured” officers of the court perjuring themselves, and no one raly has a “plan” for that.

    Dave Burgess was steamrolled, railroaded, and sold down the river by what has to be one of the most callous but effective set ups I’ve ever seen.

    Even the allegations could not have been more personally desructive to a man like Dave if he had thought them up himself. Total character assasination, total shock, and absolute 100% dead on pure evil.

    This was a deliberate attempt to utterly bring about the ultimate destruction of ONE man.

    The only real question is not WHO, but WHY?

    The only honest question better yet, is who is next?

  9. Joe Says:

    Ive been around the block in my days, I know all about government BS, but Ill tell you this, this MF had child porn on him, he should be dead if it was up too me.

    Those MF in PC are no good

  10. DirtyBruin Says:

    Joe: Which means that the government planting child porn on someone they want to get is an especially effective and nasty tactic.

    I agree with you – real child molesters are sick bastards. I just happen to believe Dave Burgess was framed; some of the points Rebel mentioned in his original article on this case just made my jaw drop. I suggest you read Rebel’s piece Framing Dave Burgess before you accuse him of being a kiddie-porn pervert.

  11. JAMES Says:

    ANYONE is capable of possesing kiddy porn, CLUB MEMBERS OR NOT, but this case has all the looks of a frame up, and then maybe not. But to plant this crap or not the media just loves it, but they never tell about the cops doing it, just anything to make any MOTORCYCLE CLUB LOOK BAD.

  12. Izzy Wildheart Says:

    I’ll tell you this, if there was any doubt in the Clubs mind about Dave, he would no-longer be a member.Dave Burgess has been stitched up in the worst possible way for a reason.Everyone hates a paedo,Dave will get Hell everywhere he goes,the club will be embarrassed yadd yadda yadda, but, as in the last jail Dave was in, even his cell mate wrote a letter on Dave’s behalf.
    As far as I’m concerned and as a mother of three kids and I wouldn’t be saying this if I had the slightest doubt about him, DAVE BURGESS IS INNOCENT.

  13. Mike Says:

    I would have to ask Dave if I had the chance the following: Why would they knowingly tow an expired trailer? He has to know they will stop him for whatever reason, why give them the chance?

  14. troyez Says:

    Yeah, I agree. Dave is innocent; if he wasn’t, he wouldn’t be in the club. I hope his next appeal gets a better hearing, higher up. Keep Dave in your prayers.

  15. Rebel Says:

    Dear Mike,

    Burgess was on his way to pick up the validation sticker from the owner of the trailer when he was stopped. But the sticker was just a contrived pretext for a stop that had obviously already been game planned.

    I had a similar reaction to you when I first started looking at the case. My first thought was, “Geez Dude! Always carry contraband in your saddlebags!” I thought if he had just carried the weed and coke in his saddlebags there would have been no probable cause for a search. But that was bullshit on my part, too, because it was never about drugs. No drug charges were ever brought. It was never about an expired registration on a trailer.

    This whole traffic stop and search was orchestrated to search Dave Burgess’ computer. This was all about “gathering intelligence.” I am certain that the police examined both the laptop computer and the two hard drives within 24 hours of the traffic stop. But the official search of the computers did not occur for another six weeks. I think it took six weeks to construct the frame.

    I think Dave Burgess was framed. I can’t prove it. I just think if it quacks it is a duck. And, I think the decision to frame Burgess happened after the police examined his computers and hard drives and did not find anything they could use.

    My opinion anyway.

    Your pal,

  16. Mike Says:

    I see your point Rebel, but still think they should have known better then to give the police a reason for the stop. I am not into conspiracy’s and wonder about the rest. I don’t know enough to comment.

  17. troll7552 Says:

    mr rebel, im not real keen on law shit, so i have to ask, is dave dead in the water? no more appeals and such to try for an reprieve?

  18. JAMES Says:

    I remember the TEXAS TROOPERS stopped us once going through AMARILLO,we had a alrge trailer with 4 bikes on it, the excuse for the stop was one of the bikes had a large knife strapped to the handlebars, a bowie to be exact, and he “THOUGHT” the safety chain was not hooked up.Well he asked for prmission to search the small motorhome I was in and asked if we had any drugs, weapons, etc. I said yes we have guns and knives both in here, so one of the two troopers went through every nook and cranny, finding the weapons which he ran the numbers on, and since I nor anyone within gave them any crap he put all the weapons back and we had to put the rest of our gear back in but thanked us for being honest and let us go, was a rather funny ordeal to me but just a hassle packing everything back where it was and the petty reason for being stopped, as when he ran our D.L.’S he knew who we were but I have to admit he was being very friendly and considerate.

  19. Rebel Says:

    Dear troll7552,

    The farther Dave Burgess gets from his trial the more difficult it gets for him to prove what lawyers call his “actual innocense.” Sorry, but from now on it is all about the legal shit.

    If Burgess can get a hearing before the Supreme Court he has a shot at having the case against him dismissed on constitutional grounds. That is the short version.

    What he has working against him is the stigma of the crime for which he has been convicted. Because of the crime, it is easy for anybody, including the Supreme Court to tell him to go fuck himself. But the kind of search to which he was subjected is, in my opinion, exactly what the founding fathers meant by an “unreasonable search.”

    Next for Burgess is to try to find a lawyer who will pitch his case to the Supremes. If he gets there next that lawyer has to make the case. Next we see what the court decides.

    Okay? If I am not clear, let me know and I will try to make it clearer. Don’t call me mister. I am just some guy.


  20. troll7552 Says:

    rebel sorry about the mr.childhood teachings(respect your elders)but i think me and you are senior citizens by now. another question. why wouldnt he use the same lawyer? cant remember his name think it was mueller?just curious.

  21. Not Surprised Says:

    Very, very few attorneys have argued before the US Supreme Court. Under certain circumstances, one can make a case for Supreme Court review. Because the charge was “Interstate Transport” this kicked it automatically to the Federal level and the state of Wyoming did not even pursue drug charges against Burgess.

    There are a couple of extra appeal levels for a crime prosecuted at the state level, but once in the Federal Judicial system, the highest appeal is the Federal Court of Appeals, one shot deal. I believe it is a 5 person panel and each side is allowed 15 minutes oral argument.

    Sometimes new evidence or other compelling facts about a case surface that are sufficient enough to seek a review still at the Federal level, but these are rare. It is even more rare that the Supremes accept a case already tried and appealed UNLESS someone like the ACLU or some well known powerhouse attorney champions the cause.

    But the original trial was so poorly handled that the appeals attorney had limited material. Because the Judge disallowed Burgess
    I agree with Rebel that a Constitutional issue involving search and seizure remains for now the best avenue. Because the Court disallowed Burgess to fire his court appointed attorney, this effectively blocked the most “popular” appeal of ineffective assistance of counsel, because Burgess was left with no choice but to sign off on his attorney of record or face trial with no counsel at all.

    Don’t count Dave Burgess out just yet though.

  22. Not Surprised Says:

    Oh, I forgot to mention that it does appear his Federal Appeal attorney did preserve some points that could indeed be challenged by the Supremes.

  23. A Side Bar Says:

    Because of the less than stellar representation Mr Burgess had in his court appointed attorney, the Federal Government was able to supersede the State of Wyoming,by envoking the Federal standard that if crimes are commited “across state lines” then jurisdiction belongs to the Feds.

    The State of Wyoming graciously waived their charges, and even declined to prosecute Mr Burgess at the State level for drug charges. There is no proof (beyond a reasonable doubt) that the hard drives were in the vehicle PRIOR to its entry into Wyoming. This would totally negate the charge of “Interstate Transporting” , which carries with it in the language of the staute, an implicit intent to “Distrbute” such material.

    If you look at the average laws per state regarding narcotics, the statutes have been revised to such an extent that several different charges can be levied in any single event.

    Posession With intent to Distribute
    Sale and Delivery of a Controlled Substance
    Maintaining a Vehicle or Dwelling for the Purpose

    Each charge carries a different Felony level and varying maximum sentencing. In theory a person who is caught with a certain amount of controlled substance, could be charged with all four.

    Had the issue of proof of Interstate travel been challenged, the prosecution of the case may well have been remanded to the State level, thus creating at least one additonal layer of Appeal. It was a State Trooper who instigated the stop, the drug charges did not rise to the level of a Federal crime, so why did the child pornography posession?

    Unless there would have been evidence, such as testimony from a law enforcement officer that the vehicle was followed from one state to the next, or a read out of a court ordered tracking device which indicated thus, no inidcation at all exists other than the fact Mr Burgess was from Nevada and was arrested in Wyoming.

    The only thing which surprises me about this case is that there was no RICO enhancement for “crimes comitted for the benefit of the Hells Angels”, though I am certain some salivated at the thought.

    In an indcitment, “Transporting” literally means moving by conveyance from point A to point whatever.

    “Interstate” means literally, from the legal jurisdiction of one state (or more than one state) to another.

    The burden of proof then, is two fold. Each component is dependent on the other. Finding the hard drives in the vehicle in no way proves they were there prior to the vehicle crossing the state line, even IF they belonged to Mr Burgess (which they did not).

    Collusion between the Feds and the State of Wyoming TO BUMP THIS UP, is further proof that Dave Burgess was the victim of a well orchestrated set up.

    Think about it.

  24. 10Guage Says:

    To think after the government has spent so much money and time to frame him up, that he would get any fair or just appeal rights is unfortunately ridiculous at best. What a sad state of afairs when the feds try and brake a man, a citizen of this counrty, and get him labeled and possibly killed because he won’t play rat snitch ball. I guess the lesson is if the feds want you bad enough they will do whatever it takes no matter how reckless to get him.

    It’s not so different from another man who belongs to another club who is also STILL behind bars after many many years because the feds recklessly dressed up like “bikers” and committed a home evasion on their club house. Then they arressted him for defending himself and his brothers. It has been going on for years.

    I am glad and not surprised, although I have never met Dave, that he walks the main line with his head held high and his brothers after doing an investigation of their own, support him completly. It goes a long way to prove to these fuckers that THEY WILL NOT BRAKE THE BROTHERHOOD.

    A lifetime can be a long time and the Feds involved in this caper most certainly haven’t crossed the line just this one time. As computer forensics gets better and better over time the truth just may come out. Unfortunately it will be too late for Dave who has not only lost his freedom but also his bussiness, reputation, not to mention the money.


  25. Rebel Says:

    Dear Side Bar,

    When I started looking at this case, I tried to talk to Burgess’ first attorney. James H. Barrett. I am fairly aggressive so it was kind of droll. I called the guy at home and at his office. One time I actually did get through to him and he did that thing where people pretend to be answering machines. I also tried to talk to Dion Custis and although he was actually polite, he told me he didn’t know anything. I took Barrett’s and Custis’ reticence as a red flag. I thought the early FBI involvement in the case was suspicious. And, I was also surprised to learn how early in the case the Attorney General for the State of Wyoming got into this.

    I was reluctant to do the story in the first place because the crime is very repugnant. I probably would not have taken six months before I actually wrote the story if Burgess had just been involved in a drug deal or murder. But I looked at it because I knew who Burgess was and I was very surprised that he might have done this. Then, the longer I looked the more it looked like Dave Burgess had been framed.

    I think the prosecution’s position on “interstate transportation” was that the pictures were not taken in Wyoming. So they had to be transported there from another state. The case had degenerated into mere sophistry by the time it got to that point. If the law existed, I don’t doubt the government would have charged him with intergalactic transportation. Logic does not matter. Truth does not matter to the Department of Justice.

    The prosecutor, James C. Anderson, has practically made a career out of child porn cases. Child porn prosecutions, as they used to say in the Orient, are his “rice bowl.” That is how he eats. Anderson convinced Judge Alan B. Johnson that Burgess is a freak. So Judge Johnson allowed Anderson to convince the jury of the same thing. The jury had about the same reaction I would have had if I was convinced someone was a potential child molester. If you can’t kill him at least lock him up and throw away the key. Matt Joyce of the AP told the world. So now Burgess’ crime and punishment are history.

    I argue with history from time to time.


  26. No Angel Says:

    Regardless of what the cop did to get whatever he could on this guy, and wether the cop was out of line, does not change the fact that this guy is a pedophile. I’m just curious how most of you would react if these were photos of YOUR children on his laptop…would you be defending him then? Didn’t think so…

  27. Not Surprised Says:

    Dear Rebel:

    Mr. Barrett is a salaried employee of District I, Office of The Public Defender, which is operated under the auspices of the US Federal Administrative Office of The Court, Federally funded.

    Cheyenne, WY is hardly a city, barely topping the population requirments at roughly 58,000. Of 169 practicing attorneys in Cheyenne listed at AVVO, his name is absent.

    Mr. Burgess is on record as stating two things: Barrett immeadiately urged him to negotiate a plea, and Burgess stated in open court his desire to terminate Barrett from representation.

    Whatever trial strategy Barett may have had, it is abundantly clear it was poorly planned. One would surely question the merit of how a jury would react to testimony of other Hells Angels as to the charcter of Mr. Burgess. The prosecution played up the HA angle as a cornerstone of his case. I’m not saying I have a problem with it, but I am not a back country right wing zealot from Wyoming.

    The decision whether or not an accused qualifies for indigent status and a court appointed attorney, is clearly an administrative one decided outside the trial court.

    Yes, this decision can be challenged in open court, however it is exceedingly rare that it is challenged by THE PROSECUTION. Strict formulae are utilized in this determination, which amounts to an exhaustive financial statement of assets vs. liabilities and no toher criteria is used. there was an early attempt by Anderson to dismantle this process which is so rare, it is considered a serious trespass by one Federal office into the realm of another. Sort of like the long standing “over stepping” jurisdictional battles between the FBI and state or local agencies you see portrayed in the movies.

    In either case, Anderson was making it known that his considerable clout and ego would be offended if Mr. Burgess was not forced to scramble for cash (thus perhaps being forced into bankruptcy or insolvency, which would please to NO end certain aother alphabet agencies) in an attempt to secure hois own paid attorney.

    Almost everything about this case screams of complicity to destroy Dave Burgess. To my knowledge, no funding was requested by Barret to hire “expert witnesses” (money which is almost always granted in court appointed cases), such as a computer forensics or IT specialist or photographic analyst who could rebut the Government’s claims, thus creating at least “a reasonable doubt”. Standard fare, actually.

    More evidence that the lack of any agressive and cohesive trial strategy was ever planned.

    Finally, though I do not wish to “niggle”, on the matter of Interstate Transport, the images on the hard drive according to sworn testimony, were downloaded from the internet. The hard drive which contained them, thus becomes the single method by which these images could be “transported” meaning literally and physically conveyed across at least two jurisdictional state lines.

    To satisfy the elements of this staute, it must be proven beyond a reasonable doubt that the defendant, acting with intent and deliberation, did this himself or orchestarted it.

    The Freightliner motorhome was approached bodily by the State Trooper when it was parked for a period of time in hopes of obtaining a close physical inspection. The trooper tesified he was aware the vehicle was associated with the Hells Angels. No witness was produced to eirther verify or dispute the testimony of the Trooper.

    Unlike personal vehicles, these motorhomes fall into a different class as fars as the Dept of Transportation is concerned. It is a fact that Freightliner also manufactures the top selling over the road units for tractor trailer operation. it is also a well known fact among those in that industry, that door keys for freightliner tractors are often interchangable by serial number sequence, meaning that the key would also unlock the door of several other units. Ask any truck driver.

    I dont know about motorhomes but one could make a good case that if at least one other key could have opened the door to Mr Burgess motorhome, then this Trooper surely could have easily planted the hard drive. I am not saying he did. I am saying that creating a “reasonable doubt” is the job of a defense attorney.


    Ok well Barett did do some cross examination.


  28. To No Angel Says:

    Being in possession of child pornography (if this were the case) does not prove pedophelia. Many people who deal in this material do so strictly for profit and have no personal interest in the content.

    Using your own logic, even if Dave Burgess is guilty (which I am convinced to the exclusion of any other possibility he is not),not one shred of credible evidence exists that Dave Burgess exhibited a sexual interest in children.

    By definitiion, a sexual interest in children defines pedophilia.

    You are welcome to your opinion, but it is as pertinent as a bucket of warm spit.

  29. Rebel Says:

    Dear Not Surprised,

    You are, of course, preaching to the choir. Thanks for your kind words.

    I do not think Burgess is a child molester. I do not think he was carrying child pornography with the intent to sell it. I do not think that he was so obsessed with his kiddie porn collection that he had to carry it with him wherever he went. I do not think he was pathetically, romantically obsessed with a 14-year-old girl. I think the guy was framed.

    The police frame people everyday. Sometimes they frame people because they are so genuinely convinced their suspect is evil that they must contrive a way to “get him” in order to “save us.” Sometimes they frame people to settle personal scores. Sometimes the police frame people just to push their weight around. Sometimes they do it for even more cynical reasons than that.

    I have no beef with Cheyenne. I like Cheyenne. They have a nice boot store right downtown. If I got busted there I would call Dion Custis rather than Jim Barrett. Barrett really does live in Cheyenne. I think he may have retired in the last year. I think he was repulsed by Dave Burgess. He thought his neighbors would be repulsed too and he does live there. Dave Burgess was just passing through.

    I think a big part of this case was simply that people trust the cops a lot more in Cheyenne than people do in LA, Vegas or Philly.

    Personally, I am inclined to think the hard drives were swapped out rather than planted. I believe both portable drives were bought in Vegas not Reno. Which would make this a federal conspiracy at a time, in the Bush Administration, when the DOJ reached its absolute moral low. But, it is all moot now. Unless he is retried, Burgess will never be able to prove his actual innocense. It looks to me like it now comes down to what is or is not a reasonable search.

    As I think I said in the original story, because of this Dave Burgess will be wearing a scarlet letter the rest of his life. It comes close to a real, actual tragedy I think. There but for the Grace of God go you or I.

    your pal,

  30. Rebel Says:

    Dear No Angel,

    Let me offer what lawyers call a hypothetical. I know this isn’t Burgess’ exact situation but this circumstance is still something that immediately occurred to me. It is one of the first things I thought because it hit close to home.

    Say you have a fourteen-year-old son. He is a manly, little scamp, he looks alright and 14-year-old girls seem to like him. Also, this kid is probably more computer literate than you are. One pretty, little 14-year-old girl in particular who likes him is kind of precocious. He thinks she is stupid but she sends him some pictures, by email. They are salacious photos. You don’t know about them and your son keeps them on his laptop for awhile. Because he likes to look at them. Eventually, he deletes them but he doesn’t reformat his disk so they are still there if anybody ever does a forensic examination. Not that this is going to ever occur to your young son.

    So one day you are on your family vacation. The boy has brought his lap top. You get stopped for illegal lane change. It is a set up. The cops are out to get you. For whatever reason. And, foolishly, you have a roach in your ash tray. I know. You are a moron. Usually only truly evil people smoke the devil’s weed but you slipped once and smoked and forgot about the roach. The cops find the roach and take this enforcement opportunity to search everything. Including your son’s lap top. They find the picture, or pictures of the 14-year-old girl. Immediately, somebody in that car is going to get charged with interstate transportation of child pornography.

    So, what are you going to do? Are you going to rat out your son? Are you going to take this charge? Are you going to just assume that everybody will know that you are not a child molester? What? What next?

    Your pal,

  31. Whatever Says:

    That’s right, the HA, merely beat and kill women and deal drugs amongst many other things. Oh wait that’s just what the government has conspired to convict their many members who are doing time of. Mainly drugs and murder, most of the women are too afraid to come forward.

    You all can believe what you want and maybe Burgess isn’t guilty. But you’re damn fools if you think these guys are not capable of this crime.

    How many have had sex with underaged girls? Quite a few but if you dare challenge that then you are portrayed as jealous or a hater.

    You people who support them, live your life how you wish but don’t label us law abiding drug free/party free citizens as snitches or cramping your freedoms when your garbage crimes affects our neighborhoods and we call the cops.

    You stay out of my neighborhood and I’ll stay out yours and away from your twisted parties.

    Oh and the few cops that I know don’t have the stomach to set someone up in this matter. If it were drugs planted, I’d say sure that’s likely but given that a Federal Agent not too long ago became a member of the Hells Angels and apparently close associates and members made this happen, it doesn’t appear to me as if the government is that hard up to catch them.

  32. Rebel Says:

    Dear Whatever,

    Thanks for commenting. I can tell you are not a fan of motorcycle clubs nor do you have to be. I bet that a minority of the people who are kind enough to read what I write here are patch holders, prospects or hang arounds. Sometimes, they are federal police, lawyers, television producers, the families of men who are accused of crimes totally unrelated to motorcycle clubs, Russian hackers and just good citizens who think I am amusing, or who like a phrase I have turned, or who think I am the most gigantic, illiterate jackass ever.

    I certainly can’t and won’t argue with your revulsion. I think your mind is made up and I think you have a right to your opinion. That is why it appears here. But I am still going to say this to you.

    The Burgess case is more about the de-evolution of America into a panicked police state that it is about the sexualization of little children. We live, the New York Times tells us in today’s editions, in a nation in which most people are afraid to let their kids walk to school. We live, I think, in a world in which the noose is tightening around all our necks. And whether Burgess is guilty or not — even if he must be guilty because what he did is, as you believe, the Hells Angels way — the guy was still railroaded.

    I think your point is that even if he was railroaded he got what he deserved. I think his defense attorney, the judge and the jury all agreed with you.

    If only his attorney had called an EnCase certified computer forensics expert, for example, the jury would have heard that there was no way to know if Burgess or somebody else had acquired the images on his portable drives. Usually there is. That is the whole point of EnCase software. That was the whole point of seizing the computers in his home in Reno.

    And, I think that if the court can railroad Dave Burgess the court can railroad me. The court can even railroad you. And, I think in this country the government owes people a fair trial before they are hung.

    Again, thanks for reading and commenting.

    your pal,

  33. Not Surprised Says:

    Dear Whatever:

    I am betting you know Tiny. Listen, there is no shortage of hyppocrisy. Should all catholics abandon their faith because a minority of priests embrace buggery? Should the entire structure of the Catholic Church be sbject to RICO for allowing sytematic abuse and then covering it up?

    Go to YouTube and type in : Americas Largest Street Gang. There are 6 vdieos. Watch them then come back and tell me with a straight face shit dont stick on your walls.

  34. Sohn Says:

    To Whatever,
    If your refering to J Dobbins, the lame was never a member of the Hells Angels and finally admitted it in his book “No Angel” (notice the name of the book).
    What biker has ever been in “your neighborhood” and violated your rights? And what is it that makes “your neighborhood ” yours and not ours? Is it that you have 911 on speed dial? Is it that you have special rights? I know that in my neighborhood my neighbors like me, invite me into their homes, spend time with me and so on. And that is what makes it ours. I get the fealing your neighbors probably think you’re a grouch.
    And as far as Dave goes, I know more about the case then almost every one else and I firmley believe in his innocence. I’ve also seen first hand many attemps at the fraiming of not only Dave but many outlaw bikers. Just look at the article on “Four Scenes From A Prosecution”. The big difference is that bikers don’t hide behind the color of their authority like police do.
    Why are you on this site anyway? what is it about us that makes you look intoour lives? You state you’ll stay away from us but here you are. Get a life.

  35. Shasiti Says:

    I have known David all of my life. I met him when I was 17 or 18, I’m 51 now. I have known from the very beggining that he was framed. When you live with someone for several years you know them. We did not even start dating until I was 29. David likes women no doubt, but not little girls. The feds have been after him as long as I have known him. He owned a brothel therefore he was always a target. When he joined the HA he became a Mega Target! I knew it was only a matter of time as I knew that they would frame him. I use to lay by the pool and Feds posing as city workers would pop there head over the fence and take survellience pictures. I use to wave to them. They tailed us everywhere we went together and seperately. They even put a tail on my mom after she moved to Reno after my Dad died. They pulled my sister over when she took his truck to the store and scared her to death. They told her the truck had just been involved in a strong armed robbery. That truck had been with me for days. LIARS! They finally let her go after I told them who she was. This totally breaks my heart because I know how unfair this is. So just remember if the Feds can get away with this because of who he is, they can get away with it with EVERYONE of you!

  36. Shasiti Says:

    People need to know the truth of the whole David Burgess matter. I have known David since about 1977. He was always a target. The Feds have been after him since he built the Old Bridge Ranch. He is also the nephew of Joe Conforte whom owned the Famous Mustang Ranch. The Feds have had him in and out of court for years. They had his house survellianced our phones tapped, they even had a tail on my mother in 92 after she moved to Reno after my father died. They posed as city workers to get close enough to the fence to take pictures of the back yard. They posed as pizza delivery men. Every time we traveled our baggage was red flagged and searched. Our passports were red flagged. This was BEFORE we started hanging with the Angels, so you can imagine what happened when we became friends with them and traveled with them. He was been a target for years and I knew it was just a matter of time before they “caught him”. If you want to know the truth do some research on Mustang and Old Bridge Ranch. You will see a pattern of abuse by the Feds for years. They finally made one stick but they knew they had to frame him and frame him good. They are getting away with it so just remember it could be anyone of you next. You have no rights in the United States. It is just an illusion.

  37. Rebel Says:

    Dear Shasiti,

    I could not agree with you more. I do not know the story as well as you but I know it fairly well and I know it all started in the Nixon Administration. I did not know about the red flagging of the passports but I do know that we have freed Al Quaida combatants and Cowboy Rigas is still in jail. I know that.

    Many people see this story as just being about Dave Burgess. I think it is a story about what happens when the government decides to get you and blind retribution becomes institutionalized.

    Keep the faith.


  38. Chuckie Says:

    I don’t know how to get this to the right place but if you think it worth it maybe you can forward it.

    Crime Scene
    The San Francisco Chronicle/SFGate.com blog on crime in the Bay Area and beyond.
    Porn conviction tossed over military’s surveillance role
    Posted on Friday, September 12 at 5:41pm | By Bob Egelko


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