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.
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.
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.
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.”
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.