Burgess Appeal Denied

May 29, 2013

All Posts, Features, News

What may have been Dave Burgess’ last best chance at vindication was denied last Friday by United States District Court Judge Alan B. Johnson. Burgess had argued that his trial lawyer, a court appointed federal defender named James Barrett, was so inept that his conduct violated Burgess’ Sixth Amendment right to a fair trial. Johnson presided over the subsequent trial.

A jury found Burgess guilty of possession of child pornography and interstate transportation of child pornography after deliberating for less than four hours on April 21, 2008. On July 18, 2008 Johnson sentenced Burgess 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 incarcerated in a federal prison in Texas.

Dave Burgess is the former President of the Nevada Nomads Charter of the Hells Angels Motorcycle Club. He is the nephew of Sally Burgess and Joe Conforte who opened and operated a brothel in Story County, Nevada named the Mustang Ranch. Burgess, whose lifetime ambition from age 12 had always been to belong to the Hells Angels, inherited a part of the original Mustang called the Old Bridge Ranch.

Burgess was arrested for possession of marijuana and cocaine in a game-planned traffic stop in Wyoming on July 24, 2007. At the time Burgess and a fellow member of the club were driving the chase truck behind a pack of Hells Angels travelling to the club’s national run in Arkansas. Using the legal theory that Burgess must be a drug dealer because he was a Hells Angel in possession of drugs, local police seized computer equipment in the chase truck and sent it to the offices of the Wyoming Internet Crimes Against Children (ICAC) Team in Cheyenne. Forty-four days later an investigator found evidence of “child exploitation” on the equipment and Burgess was subsequently indicted for the child pornography.

Child Porn

There were two distinct categories of pornography on Burgess’ computer equipment. One was a vast library of pornographic images. The number of images exceeded the number of images in the Cheyenne ICAC library of pornographic images. A cursory examination of Burgess equipment indicated that none of the well organized image files had ever been opened.

The equipment also contained images of a 14-year-old girl referred to in most court filings as “RC.”

RC was Burgess’ ward. Her father was an incarcerated Hells Angel. Her mother had a substance abuse problem and was unable to care for the girl. So Burgess, as chapter President, took her in. The images depicted RC naked, in a motel room in Winnemucca, Nevada that was known to have been occupied by Burgess and his household. The photos were embellished with lewd captions and the possibility that Burgess had molested the daughter of a club member enraged many Hells Angels both in and out of the United States. It is very unlikely that the captions were written by Burgess. They were, as a matter of fact, not created with any software Burgess owned.

After his arrest and before his trial Burgess was given an ultimatum by a government official. Burgess was told to renounce his interest in the Old Bridge Ranch, agree to be extensively debriefed about the Hells Angels, accept a sentence of five years in prison and enter the United States Marshall’s witness relocation program. If he did not, Burgess was told, his own club brothers would kill him. Burgess, believing he was safe because he was innocent, declined the offer.


RC was interviewed, on videotape, by the FBI and very vigorously protested that Burgess had never photographed or exploited her. RC later travelled to Cheyenne during Burgess’ trial. She offered to testify in Burgess’ defense but she was never called by James Barrett. It was hardly the only misstep Barrett made in Burgess defense. Burgess was assigned a public defender because throughout his indictment and arrest he was impoverished by a $2 million IRS lien. And he was forbidden to leave his home. Burgess later stated that his house arrest hindered his attempts to borrow money to hire a lawyer. Barrett is now the branch chief of the Cheyenne Branch of the Office of the Federal Public Defender for the Districts of Colorado and Wyoming.

Burgess tried before his trial to fire Barrett and hire an attorney named David Chesnoff. San Francisco attorney Tony Serra now represents Burgess. Burgess, according to a habeas corpus petition filed by Serra in 2010, “was prevented by his pre-trial detention arrangement from raising funds for the legal fees of a private attorney.” Burgess was finally freed from home detention days before his trial.

Most of the substantive “public” documents related to the Burgess case remain unavailable to the public. Apparently those documents are sealed to protect the identity of RC. The Aging Rebel has legally obtained most of those documents, including a transcript of the trial, anyway.


Burgess has appealed his conviction before. The Tenth Circuit Court of Appeals in Denver ruled that the search that uncovered the evidence against Burgess was legal and denied Burgess’ appeal on the grounds that the search was unconstitutional. The Tenth Circuit’s rules governing computer searches are in conflict with rules established by the Ninth Circuit in the BALCO case but the Supreme Court declined to review Burgess’ conviction. Judge Johnson’s review of the case has been ongoing for 29 months. He held a hearing on the matter last month. The Aging Rebel has intentionally limited this page’s coverage of the case during the last 16 months in order to avoid either informing prosecutors or prejudicing the Judge’s ruling on this appeal.

There appear to be numerous, obvious, blatant deficiencies in Burgess’ defense beyond James Barrett’s failure to call RC to testify or to enter her videotaped statements into evidence.

Barrett urged Burgess to take the government’s proffered plea deal then had virtually no contact with Burgess until the trial. Barrett went on vacation for two weeks immediately before the trial and was unavailable to his client or the court until the Friday before the beginning of trial. Barrett investigated no leads and interviewed no witnesses before the trial. And his handling of the computer forensics investigation was cursory and obviously flawed.

Defense Expert

A professional and experienced computer forensics technician might have found an alternative explanation for how the vast and unopened catalog of pornography appeared on Burgess’ hardware, how and when the offensive captions were superimposed over the photos of RC and how hardware Burgess had thrown away appeared in the crash truck more than a year later. Burgess wanted Barrett to hire an independent computer forensics technician and, on the advice of friend who had actually maintained a website for Burgess, he told Barrett what to look for.

Instead of a professional examiner Barrett employed the services of Gene Jone, a part-time disc jockey whose day job was as the IT Administrator at the Federal Defenders office in Denver. At trial Jone testified about his non-entertainment jobs, “I do the network administration. I do litigation support, which is trial prep and trial presentation. I also do digital forensics….”

Jone did not examine any of Burgess hardware until the week before trial. He appears to have been largely guided through his cursory forensic examination by the police. He found little that was exculpatory and his testimony at trial was confused and weak. The Aging Rebel believes that most of that computer evidence has now been destroyed.

Pre-Trial Hearing

Burgess attempted to fire Barrett and hire Chesnoff the Friday before his trial began. Because Chesnoff was not licensed to practice in Wyoming, he would partner – as is usually the case – with a local attorney named Dion Custis. The two new attorneys needed a week’s continuance to prepare for the trial. The hearing on the motion to change counsel began at 3:30 in the afternoon and Barrett did not arrive until 4:21. Barrett’s first comments to Judge Johnson dripped contempt for his client:

“In a nutshell,” Barrett began, “Mr. Burgess wants to fire our office. He’s unhappy. He’s lost confidence. We’re railroading him. We’re doing any number of terrible things, neglecting him, haven’t kept him advised. He hasn’t seen all the discovery, he hasn’t been taken to ICAC and other, other and various failings and deficiencies on our part that have been communicated to him, I understand, although I haven’t heard it from Mr. Burgess or these other lawyers, by other attorneys.” Barrett went on to tell Judge Johnson that a change in attorneys would delay the trial by 45 days.

The hearing transcript reads like a farce. The least funny part of it is Burgess obvious, rising desperation. Because of the conditions of his home confinement Burgess told the judge, he was unable raise money for a new lawyer until those conditions were modified two days before.

Burgess’ Hearing Testimony

“As a matter of fact, in the last two days I have noticed that my condition was changed to where I was – I could get out during the day and in one day I’ve got two promissory notes, one for ten thousand, one for thirty-five thousand….”

“I’m going to court here in three days, and I mean, who’s…I mean, I don’t know, it’s…I don’t know who to blame here but the bottom line is, is I should have been out looking for an attorney and doing what I needed to do…. I had a problem with Mr. Barrett when Mr. Barrett told me he dropped the ball. Okay?”

“Now I know you are reading what you are reading there. Mr. Barrett told me he dropped the ball, and he did say that to me. And you can ask him yourself…. I mean heck, it’s my whole life here.”

“How come I haven’t seen any…I mean, every one of these documents has my name on it.”

“You know, and I’m telling you, I don’t think I’m getting a fair shake here. If I have to go to trial on Monday, I don’t think I’m gonna be represented the way I should be represented….”

“Your honor I need to get myself another attorney and I have another attorney, David Chesnoff, in the state of Nevada that I would like to go forward with and using the local counsel here, Mr., um, Mr. Custis. But I don’t see how I can go to trial – I mean I want to be prepared to go to trial. This is my whole Life. I’m looking at 20 years in prison for something I didn’t do. You know I need to be able to defend myself. I need experts. Who…I don’t have any…I don’t even…I don’t know if I have any experts, you know. I’ve talked to Mr. Brinkerhoff. He says, Well they have an expert. To me it almost seems like the experts are the experts the government has. I need my own experts. I need my own people to look at each and every one of these things to see what they are.”

“I’ll tell you Your Honor, I don’t know what to do at this point. I’ve lost confidence in my counsel. And, you know I’m not a public speaker.”

“Your Honor, I need to get…have myself counsel that can represent me in this case or I’m finished.”

“And, I don’t know what else to tell you, you know. I mean, I’m not stalling. I’m not doing any of those things.”

“You know, I sure would like the chance to be able to defend myself, Your Honor. I don’t know what else to say. I don’t. I guess I don’t have anything else to say. I’ll sit down, if you want me to.”

No Delay

After listening to Burgess plead for a “fair shake,” Judge Johnson ruled the trial couldn’t be delayed because a delay would inconvenience too many people. Sixty hours latter Barrett was so ill-prepared for Burgess trial that he had not even written an opening statement.

Among the people Barrett refused to call to testify was Steven Byars, Burgess’ older cousin who had helped Burgess with his website, titled Daves World81. Byars was prepared to testify that Burgess was not adept enough with computers to have constructed the pornographic database Burgess had been charged with making. Byars was not called because “he was a Vietnam War veteran who had suffered severe physical injury that left him disabled and dependent on a wheelchair for mobility, and because he suffered from post-traumatic stress disorder (PTSD), Mr. Barrett was concerned that he would lose his temper on the stand and hurt someone.”

Barrett also refused to call Burgess to testify in his own defense.


Prima facie, Dave Burgess was framed and then he was railroaded. Last Friday the conductor of the railroad, Judge Johnson, took 149 pages to explain why he thought Burgess’ demand for a new trial was meritless. “The file, records, and all submissions by the parties conclusively show he is not entitled to the relief he seeks,” Johnson wrote.

Serra may find some grounds in those 149 pages to bring Burgess’ case back to the Tenth Circuit.

A book about the case, titled Framing Dave Burgess, will be published in paper this July and will be available as an e-book in August.


, , , ,

59 Responses to “Burgess Appeal Denied”

  1. Glenn S. Says:

    Frequent Flyer said: “How come it took “Forty-four days” for the alfabits to find this large file— which was never opened once—- of child porn on Dave’s computer?”

    The whole case strains logic to the breaking point. IMHO, the #1 problem in the USA today is that the sheep and the courts give law enforcement the benefit of all doubt. This in of itself defies logic because everybody seems to realize that some element of the government lies all the time. Some people say the present executive branch of the government lied about the Benghazi terrorist attacks, others believe that the previous administration lied about WMD in Iraq. A lot of people believe the attorney general of the US lied and continues to lie about guns going to the cartels and government spying on the press. The politicians lie about who they are fucking and that is somehow supposed to be more important than government officials lying about whether or not someone committed illegal acts. The government lies and most people realize this, EXCEPT when it comes to law enforcement lying about whether or not somebody committed a crime. Then they either bury their heads in the sand or claim the government is telling the truth.

  2. lurker Says:

    i was in the moonlight ranch once a long time ago. it was full of dudes with pockets full of money. i understand it’s owned, once again, by a county commisioner. kinda strange how shit happens like that.

    respects, lurker

  3. Tooj Says:

    @Frequent Flyer. you wrote: “Shit, I download one picture of a naked broad on my computer, and my wife can find it in less than 5 minutes.

    Never mind the stop was illegal, the search was illegal, the confiscation of the computer was illegal—”

    Taken slightly out of context and becomes funny as hell. Wives don’t NEED warrants.

  4. WARTHOG Says:

    @Glenn S.,

    Combine what you have posted with concealing and “losing” exonerating evidence and they have an air tight case.

    Don’t believe anything you hear and only half of what you see.

    @Frequent Flyer,

    Reminds me of this Chris Rock standup:


    The whole video is good, but the part I am thinking of starts at the 4:20 mark.




  5. Frequent Flyer Says:

    @Glenn S

    I guess it comes down to the serenity prayer ie courage to change the things I can and accept the things I can’t (And accepting it don’t mean I have to like it).

    I can’t undo the past, but I sure as hell know now that in the future:

    Rent a vehicle. Get a driver with a clean record, non-affiliated. Absolutely no electronic devices in the vehicle. Absolutely no drugs or alcohol in the vehicle. Definitely no weapons.

    Business and fun are two separate things. Always.


    Marriage— it’s a life sentence. Ha ha.



    “She found two condoms in my pocket— it was a packet of three” LMAO

    Chris Rock, like so many other comedians, stopped being funny ever since he became an unthinking O-Bot. That guy (Barry O) destroys everything he touches.

    L & R

  6. BlackDiamond Says:

    The reality is that the gov can do anything it wants. Throw in an opportunistic DA, or a PD or judge and you get science-fiction masquerading as justice.

  7. Austin Says:

    Thank you Not Surprised!
    re: “If someone doesn’t specifically address me by name, they don’t get my attention.”

    and THAT was EXACTLY my point! Thanks for making it clear.

  8. Blind Tom Says:

    Interesting reading these older posts in light of the fact that the government has just been busted for wiretapping millions of Americans. But what is really depressing is 70 percent of Americans — according to the “government” — approve of this secret program authorized by a secret court, saying it is important for so-called national security.


  9. VINCE 1%er Says:

    Number 1) NEVER trust,liked,associated with or talk to PIGS(cops or other law enforcement agents,associates or employees) even after or before high School.
    2) I Served in the USMC for 8 years and before that I was a Biker(at an early age -driving my 1969 XLCH Sporty from Yonkers NY To Oakland CA.) and I experienced alotta things that brought Me back THEN – to the 1%Er Lifestyle and Life I lead Now.
    I have met befriended and experienced & Made Friends with REAL Men and People/Friends at the very CORE that this website and others here have done,been into and experienced.THIS Lifestyle and Beliefs WE Have cannot be duplicated,portrayed,Imagined or put into Hollywood perspective with the hopes of anyone with a Brain to UNDERSTAND.WE Live in Dangerous times – which make being a REAL 1%Er even more of an endangered Species….But I’ll ALWAYS Tell IT Like It Is and Represent that in Which I Believe IN and Support,Defend and Stand UP For my Brothers & Myself in ANY Way Possible.
    Thank YOU Rebel for letting Me air my thoughts and banter on your FINE website.

Leave a Reply