United States v. Burke, Robert A.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3483

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT A. BURKE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 1049—Rebecca R. Pallmeyer, Judge.

____________

ARGUED FEBRUARY 9, 2005—DECIDED SEPTEMBER 28, 2005

____________

Before BAUER, EASTERBROOK, and ROVNER, Circuit

Judges.

BAUER, Circuit Judge. Defendant-Appellant Robert

Burke was charged in a superseding indictment with six

counts of perjury before a grand jury, pursuant to 18 U.S.C.

§ 1623. A petit jury convicted him of all but the third count,

and he was sentenced to 20 years’ imprisonment. He

challenges both his conviction and his sentence on appeal.

We affirm his conviction but vacate his sentence and

remand for resentencing pursuant to United States v.

Booker, 125 S.Ct. 738 (2005).

2 No. 03-3483

I. Background

This case involves Burke’s efforts to disguise his role in

facilitating the failed escape attempt of fellow inmate

Jeffrey Erickson from the Dirksen Federal Building on

June 20, 1992. On November 1, 1991, Burke was arrested

for stealing money from a bank account and detained at the

Metropolitan Correctional Center (“MCC”) in Chicago. He

was assigned to the 17th floor, where he met inmates

Jeffrey Erickson, Richard Luttrell, Thomas Hogan, and

Humberto Gil-Vidarte (“Gil”). Chong Won Tai, a Korean

businessman, was an inmate on the 19th floor. Burke met

Tai in December 1991, and they socialized regularly for the

next several months. During that time, Burke offered to

have his parents smuggle into the MCC a handcuff key that

he would sell to Tai for $10,000; he also suggested to Tai

that the basement of the Dirksen building was the

best place to attempt an escape. Tai declined Burke’s offer

but found another proposal more attractive. Burke of-

fered to connect Tai with a lawyer who for $350,000 would

bribe Tai’s judge, and Tai agreed. Burke told Tai that the

attorney’s driver would swing by Tai’s wife’s house to collect

the first payment of $100,000. The driver stopped by and

Tai’s wife made the payment, but neither the attorney nor

his law firm received the money.

Burke offered to perform services for other inmates, as

well. For example, he told Gil that he could obtain a

passport for him for $25,000, but Gil declined; Burke also

offered to get Gil some bad medicine as part of a plot to sue

the Bureau of Prisons, but Gil chose not to pursue the

matter. In addition, Burke offered to bribe Hogan’s judge

for $10,000, but Hogan declined.

In June 1992, Burke passed Tai a note which stated that

“exciting things” were about to happen to Erickson. The

next month, Luttrell was visiting Erickson’s cell when

Erickson revealed a small, rounded object that he held

No. 03-3483 3

between his thumb and forefinger; he gestured with the

object and told Lutrell, “I can leave at any time.” Around

the same time, Luttrell overheard Erickson arguing with

Burke about a key being overpriced, which caused Burke to

respond: “If it wasn’t for me, you wouldn’t have it.” Gil saw

them arguing, too, and heard Erickson yell, “Don’t worry. I

am going to pay you.” He then heard Burke ask: “If you got

what you wanted, why can’t I get what I want?” When Gil

later inquired about the argument, Erickson told him that

Burke sold him something and had increased the price. Gil

asked what he had bought, and Erickson showed him a

small object with a silver shaft that he had hidden in his

shoe; Gil recognized it as a handcuff key. Erickson told Gil

that Burke had gotten the key by hiding it under a table in

the visiting room.

On July 20, 1992, Erickson was on trial at the Dirksen

building. At the end of the day, he was brought to the

building’s basement to be transported back to the MCC.

While in the elevator, Erickson freed himself from his

handcuffs. When the door opened, he overpowered a deputy

U.S. Marshal and seized her revolver. As he ran through

the garage area of the basement, he shot and killed U.S.

Marshal Roy Frakes and fatally wounded Court Security

Officer Harry Belluomini. Erickson himself was wounded,

and he shot himself in the head. A handcuff key was found

next to his body.1

Word of Erickson’s fate quickly reached the MCC. Luttrell

heard Burke boast that the escape attempt “proves that if

you want anything done in Cook County, you got to see me.”

Burke’s mood darkened, though, after he was interviewed

by the FBI as part of its investigation into the source of the

1

The government introduced evidence at trial that none of

the officers present during the escape attempt were missing

keys to the handcuffs that they carried.

4 No. 03-3483

handcuff key. Immediately after his interviews, Burke told

Tai to destroy anything he had with Burke’s name on it.

On September 14, 1992, Burke pleaded guilty in his bank

theft case and was sentenced to two concurrent five-year

terms of imprisonment and two concurrent five-years terms

of supervised release. On July 8, 1994, he was paroled after

serving approximately half of his custodial sentence. He fled

the jurisdiction in the months that followed, and on Novem-

ber 30, 1994, a warrant was issued for his arrest. On

September 4, 1998, Burke was arrested in London. Burke

fought his extradition to the United States for two years,

but the British courts ultimately ordered him extradited for

violating the terms of his supervised release.

Burke was returned to the United States on December 22,

2000. Upon his arrival, he was subpoenaed to testify before

the grand jury investigating the Erickson escape attempt.

Burke was then sent back to the MCC, where he became a

friend of inmates Fred Rock and James Taylor. Burke told

them he had gotten Erickson a handcuff key through his

mother and was supposed to receive between $5,000 and

$9,000 for it. On October 2, 2001, Burke was granted

immunity from prosecution for the escape attempt and

testified before the grand jury; he denied that he knew

anything about Erickson’s handcuff key or that he had

helped procure it.

On December 5, 2001, Judge Lindberg determined that

Burke should not have been sentenced to supervised release

for his bank theft conviction because the offense occurred

before the relevant provisions of the United States Sentenc-

ing Guidelines took effect. Pursuant to this finding, the

judge held the supervised release portion of Burke’s bank

theft sentence void ab initio, and ordered Burke’s immedi-

ate release. That same day, Burke was arrested and

charged with committing perjury before the grand jury. On

November 21, 2002, a jury convicted Burke of perjury, and

he was sentenced.

No. 03-3483 5

II. Discussion

Burke raises numerous issues on appeal. We will address

each in turn.

A. International Law Claims

Burke first argues that the district court should have

dismissed the indictment because (1) his prosecution for

perjury violated the Rule of Specialty contained in the

extradition treaty between the United States and England,

and (2) the vacatur of his supervised release sentence

undermined the basis for his extradition and thus stripped

the court of jurisdiction. We review both claims de novo.

Matta-Ballesteros v. Henman, 896 F.2d 255, 258 (7th Cir.

1990).

The jurisdictional argument confuses subject-matter

jurisdiction with jurisdiction over the person. Subject-

matter jurisdiction is furnished by 18 U.S.C. § 3231, which

covers all criminal prosecutions under the United States

Code. Personal jurisdiction is supplied by the fact that

Burke is within the territory of the United States. Whether

he came to this nation in a regular manner does not affect

the court’s authority to resolve the criminal charges against

him. See United States v. Alvarez-Machain, 504 U.S. 655

(1992). This means that we need not decide whether Judge

Lindberg was right to alter the sentence imposed before

Burke’s flight from the United States, or whether the

British judiciary acted correctly in holding that the extradi-

tion treaty called for his return to this nation.

As for the Rule of Specialty: Matta-Ballesteros holds that

extradition treaties do not create personal rights enforce-

able by criminal defendants. 896 F.2d at 259. Instead they

create rules for the relations between nations. The United

States (represented by the President and his Cabinet)

believes that the charges against Burke are proper under

6 No. 03-3483

our treaty with the United Kingdom, because the crime

for which he is being prosecuted occurred after his ex-

tradition. Article 12(2) of the relevant treaty provides that

the rule limiting prosecution to the offense for which

extradition has been granted “shall not apply to offenses

committed, or matters arising, after the extradition.”

Extradition Treaty between the United States and United

Kingdom, June 21, 1977, 29 U.S.T. 227, T.I.A.S. No. 8468.

The United Kingdom has not expressed dissatisfaction with

this view and, had it done so, diplomacy rather than

litigation would have been the way to resolve the disagree-

ment. The question for the Judicial Branch of this nation is

simply whether Burke committed the crime of which he has

been accused.

B. Perjury Trap

Burke next argues that the district court erred in denying

his motion to dismiss the indictment on hit theory that the

prosecution called him before the grand jury for the purpose

of producing perjured testimony. According to the Ninth

Circuit, a “perjury trap” is created when “the government

calls a witness before a grand jury for the primary purpose

of obtaining testimony from him in order to prosecute him

later for perjury.” United States v. Chen, 933 F.2d 793, 796

(9th Cir. 1991). We have not embraced this doctrine,

however—see, e.g., United States v. Devitt, 499 F.2d 135,

140 (7th Cir. 1974); United States v. Nickles, 502 F.2d 1173

(7th Cir. 1974)—and do not see any reason to adopt it now.

Why would a prosecutor be forbidden to give a suspect an

opportunity to commit the crime of perjury? Investigators

offer opportunities to commit many offenses and may lead

people toward their commission. Usually the offers concern

drugs, weapons, or bribery, but the principle is not limited

to these offenses. If the inducement is so powerful that it

amounts to entrapment by overcoming the will of a person

No. 03-3483 7

not already predisposed to commit the offense, while

providing the means to a person who could not have

committed the crime without assistance, then criminal

punishment is not proper. United States v. Hollingsworth,

27 F.3d 1196 (7th Cir. 1994) (en banc). But if the suspect is

predisposed to commit the offense, and could have commit-

ted it without assistance, prosecution and conviction are

appropriate. See, e.g., Mathews v. United States, 485 U.S.

58 (1988); Hampton v. United States, 425 U.S. 484 (1976);

United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985).

Burke has not raised an entrapment defense; his predispo-

sition to lie is obvious, and he did not need the govern-

ment’s aid in order to tell a lie. Indeed, it is knowledge of a

suspect’s predisposition to commit a crime that, according

to the Ninth Circuit, makes it wrongful for the prosecutor

to offer the opportunity. Yet that turns the entrapment

defense on its head, and giving the defense a new name

(“perjury trap”) does not permit a court to contravene

governing decisions such as Mathews and Hampton that

treat predisposition as permitting, rather than blocking,

criminal punishment.

Should inducement to commit perjury differ from induce-

ment to commit other offenses? Until recently some appel-

late courts held that an “exculpatory no” could not

be prosecuted as a crime, but Brogan v. United States,

522 U.S. 398 (1998), disapproved that doctrine. The court

observed that there are many ways to challenge the govern-

ment’s right to ask questions, but that lying is not among

the valid ways. Just so here: If he deemed the prosecutor’s

questions before the grand jury improper for any reason,

Burke could have refused to answer and obtained a judicial

decision on the subject. Instead he chose to lie, and he must

live with the consequences of that choice.

Another potential difference between perjury and other

crimes is that only a request for material information can

be the basis of a perjury charge. Burke does not contend,

8 No. 03-3483

however, that the prosecutor’s questions were immaterial

to a subject within the grand jury’s legitimate concern.

There is no statute of limitations for murder, so finding and

prosecuting accomplices to Erickson’s conduct was a proper

subject of an ongoing examination. That the prosecutors

knew (or thought they knew) the answers to the questions

they asked Burke does not make the information less

material. Confirming tentatively held views— or uncovering

information that will refute them—is altogether appropri-

ate. See, e.g., United States v. R. Enterprises, 498 U.S. 292

(1991). So the grand jury was entitled to seek Burke’s

knowledge. That prosecutors strongly suspected that Burke

would lie rather than reveal his knowledge does not make

the questions improper, let alone enable him to escape the

punishment that attaches to deceit when the grand jury is

entitled to hear the truth.

C. Evidence of Prior Bad Acts

Burke contends that the district court erred by admitting

evidence of his prior bad acts as proof that he committed

perjury. The evidence proffered by the government included

testimony from inmate Tai that Burke had offered to obtain

for him a handcuff key in return for $10,000 and to connect

Tai with a lawyer who could influence a judge in return for

$350,000. The evidence also included testimony from

inmate Gil that Burke had offered to obtain for him a

passport and medicine that would make him sick and thus

more likely to receive a reduced sentence. In addition, the

district court admitted evidence that Burke faced substan-

tial financial obligations as a result of his conduct prior to

incarceration, which his mother helped him pay while he

served his sentence. We review the district court’s eviden-

tiary rulings for abuse of discretion. United States v.

Williams, 238 F.3d 871, 874 (7th Cir. 2001).

No. 03-3483 9

While evidence of a defendant’s prior bad conduct may not

be admitted for purposes of showing action in conformity

therewith, it may be used to show motive or a common

scheme or plan pursuant to Federal Rule of Evidence

404(b). United States v. Montani, 204 F.3d 761, 767 (7th

Cir. 2000). We have held that evidence of prior bad acts is

admissible where:

(1) the evidence is directed toward establishing a

matter in issue other than the defendant’s propensity to

commit the crime charged, (2) the evidence shows that

the other act is similar enough and close enough in time

to be relevant to the matter in issue, (3) the evidence is

sufficient to support a jury’s finding that the defendant

committed the similar act, and (4) the probative value

of the evidence is not substantially outweighed by the

danger of unfair prejudice.

United States v. Bursey, 85 F.3d 293, 296 (7th Cir. 1996).

Burke contends that the proffered evidence failed to

satisfy any of the above prongs and that the district court

applied the wrong standard of proof in its analysis of the

third prong.

Burke’s overarching claim is that the government’s

evidence had nothing to do with whether he committed

perjury. The district court disagreed, and so do we. In order

to prove its case, the prosecution had to demonstrate,

among other things, that Burke lied when he told the grand

jury that he never procured a handcuff key for Erickson. As

the district court noted, the prior bad acts evidence prof-

fered by the government was directed toward establishing

Burke’s motive to obtain money from inmates and his

methods of doing so. The evidence was sufficient to support

a jury’s finding that Burke had in fact made the prior offers.

Further, Burke’s prior conduct—including his offer to sell

inmate Tai a handcuff key—was similar enough and close

enough in time to be relevant to Burke’s discussions with

Erickson.

10 No. 03-3483

Burke’s primary challenge, however, goes to the standard

of proof that the district court applied in analyzing the

third-prong. The third prong of the test provides that prior

acts evidence is admissible when it “is sufficient to support

a jury finding that defendant committed [the] similar act.”

United States v. Long, 86 F.3d 81, 83 (7th Cir. 1996). The

district court interpreted that rule to mean that prior acts

evidence is admissible where the jury could find “by a

preponderance” that the defendant committed the similar

act. The court’s interpretation was consistent with the

holding in Huddleston v. United States, 485 U.S. 681 (1988),

where the Supreme Court rejected the clear and convincing

evidence standard previously applied by this and other

courts and held that the preponderance standard is appro-

priate for determining the admissibility of prior acts

evidence. Id. at 690. In Huddleston, the relevance of the

404(b) evidence hinged on a conditional fact determination.

Id. Burke argues that Huddleston is inapplicable where the

relevance of the 404(b) evidence is conditioned upon the

defendant having actually committed the similar act. He

maintains that in situations where the government proffers

evidence relating to a substantive offense that neither a

judge nor a jury had previously determined was committed,

404(b) evidence is admissible only if a jury could determine

“beyond a reasonable doubt” that the defendant commit-

ted the similar act.

The district court applied the correct standard under the

facts in this case. The government sought to introduce

404(b) evidence to establish that Burke offered to per-

form various services, not to establish that he in fact

performed those offers. Notably, Tai never accepted Burke’s

offer to obtain a handcuff key, and Gil declined Burke’s offer

for a passport and medication.2 The government did not

2

Tai did accept Burke’s offer to connect him with an attorney

(continued...)

No. 03-3483 11

introduce the evidence for the purpose of proving that

Burke performed these offers, but rather to show his

method of operation. Because Burke’s offers were not

substantive offenses, the fact that they were made did not

have to be proved beyond a reasonable doubt. However, if

we were to assume for the sake of argument that the court

applied the incorrect standard, then the error was harmless

in light of the testimony given by inmates Rock and Taylor

that Burke admitted to them that he had procured a

smuggled handcuff key for Erickson. Trial Tr. at 1625-32,

2157-60, 2257.

D. Immunity for Burke’s Mother

Burke contends that the government’s refusal to grant his

mother immunity from prosecution prevented her

from providing important exculpatory testimony on his

behalf and thus distorted the trial’s fact-finding process.3

He claims that his mother was prepared to testify that

neither she nor her deceased husband ever had conversa-

tions with Burke about bringing a handcuff key or contra-

band into the MCC. We review refusals to grant im-

munity to a defense witness for abuse of discretion. United

States v. Hooks, 848 F.2d 785, 799 (7th Cir. 1988).

The United States Attorney has authority to grant

immunity to a witness; federal courts, by contrast, play only

a ministerial role in ensuring that this power is properly

2

(...continued)

who could supposedly bribe Tai’s judge, but this service was never

performed either.

3

Burke also maintains that his mother did not testify because

the district court lulled him into thinking that the stakes at

trial were low. This argument merits no discussion in light

of Burke’s hard-fought legal battles to avoid extradition.

12 No. 03-3483

exercised. George, 363 F.3d at 671-72. Criminal defendants

have a fundamental due process right to present witnesses

who will testify on their behalf. Hooks, 848 F.2d at 799.

What is more, these witnesses must be free to testify

without fear of retaliation. See, e.g., Webb v. Texas, 409 U.S.

95, 98 (1972) (reversing a conviction where the trial judge’s

warnings to the defendant’s only witness deterred him from

testifying). The prosecutor’s broad discretion to refuse

immunity is limited by the defendant’s due process rights.

United States v. Schweihs, 971 F.2d 1302, 1315 (7th Cir.

1992). A defendant’s due process rights are violated when

the prosecutor abuses his authority to immunize witnesses

with the intention of distorting the fact-finding process. Id.

Although a federal court cannot order the government to

immunize a defense witness, courts can dismiss an indict-

ment where the prosecutor’s refusal to grant immunity has

violated the defendant’s right to due process. United States

v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir. 1988).

Burke maintains that the government’s decision to

withhold immunity from his mother denied him access to

exculpatory evidence and thus violated his due process

rights. Burke, however, has failed to make the “substantial

evidentiary showing” that is required to succeed on his

claim. Hooks, 848 F.2d at 802. As an initial matter, pros-

ecutors have significant discretion to decline immunity to a

witness, particularly one who—like Mrs. Eileen Burke—

could be charged for perjury. Id. (“It is well within the

discretion of a prosecutor . . . to decline immunity to a

witness who could be charged for false statement and

perjury.”). Moreover, as the district court observed, there is

no evidence that the government threatened Mrs. Burke or

sought to intimidate her. See, e.g., Webb, 409 U.S. at 97-98

(finding due process violation where judge singled-out

witness for lengthy admonishment of dangers of perjury).

Instead, there are indications that her decision not to testify

may have been strategic. For example, her attorney once

No. 03-3483 13

advised her to invoke her Fifth Amendment rights if

questioned about the handcuff key. Trial Tr. at 2350. She

had also made demonstrably false statements about always

visiting her son in the presence of his father which the

government could have used to attack her credibility. Trial

Tr. at 1472-73. The prosecution’s refusal to absolve wit-

nesses of their responsibility to testify truthfully does not

impermissibly distort the fact-finding process. See United

States v. Taylor, 728 F.2d 930, 935 (7th Cir. 1984) (finding

that prosecutor’s decision to revoke immunity of witness

who testified falsely was not in bad faith and thus with-

in bounds of discretion). We find that the prosecutor did not

abuse his discretion in refusing to grant Mrs. Burke

immunity.

E. Prosecutorial Misconduct

Burke argues that the government presented testimony

to the grand jury and at trial that was untrue and then

failed to correct the statements. The government’s knowing

use of false testimony, or failure to correct testimony,

violates due process. United States v. Thomas, 987 F.2d

1298, 1300 (7th Cir. 1992) (citing Giglio v. United States,

405 U.S. 150, 153 (1972)); United States v. Bontkowski, 865

F.2d 129, 133-34 (7th Cir. 1989); see also United States

v. Williams, 504 U.S. 36 (1992). However, we will not set

aside a verdict and order a new trial unless the defendant

establishes that: (1) the prosecution’s case included perjured

testimony; (2) the prosecution knew or should have known

of the perjury; and (3) there is a reasonable likelihood that

the false testimony could have affected the judgment of the

jury.” Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001).

We review the district court’s refusal to dismiss the indict-

ment or to grant a new trial based on prosecutorial miscon-

duct for an abuse of discretion. United States v. Sandoval,

347 F.3d 627, 631 (7th Cir. 2003). In conducting our

14 No. 03-3483

analysis, we must accept the district court’s findings of fact

unless they are clearly erroneous. United States v.

Balistrieri, 779 F.2d 1191, 1225 (7th Cir. 1985).

1. Tai’s Trial Testimony

Tai testified at trial that he had met Burke’s parents

three times in the visiting room of the MCC. Following his

conviction, Burke moved for a new trial. He claimed that

the government knew Tai’s testimony was false because Tai

and Burke lived on different floors of the MCC and, accord-

ing to the MCC standard schedule, had different visiting

days. The district court found that Tai had not testified

falsely because, regardless of the standard schedule, MCC

visiting records and Tai’s contemporaneous calendar notes

reflected that Tai was in fact present in the visiting room on

four separate occasions when one or both of Burke’s parents

were present. R. at 200: 9. The court offered as a possible

explanation the fact that Tai claimed to be able to visit any

time he wanted with “Korean attorneys” who had nothing

to do with his case but were often in the building. Id.; Tr. at

1115-16. In addition, the court found that there was no

likelihood that Tai’s testimony had any affect on the jury

because it was tangential to the government’s case. R. at

200: 9.

Burke argues that the only reasonable explanation for the

apparent discrepancy in the MCC standard schedule on the

one hand and the MCC visiting records and Tai’s calendar

on the other is that Tai lied, because inmate visits with

attorneys were typically not conducted in the main visiting

room. The discrepancy is mysterious, but we agree with the

district court’s conclusions. Moreover, there is no reason to

believe that Tai’s testimony had any impact on the jury

whatsoever. The comment was a brief aside that Tai made

during cross-examination that proved nothing more than

No. 03-3483 15

the fact that Burke was visited by his parents, which was

undisputed. Consequently, the court’s denial of Burke’s

motion for a new trial was not an abuse of discretion.

2. Special Agent Hardgrave’s Grand Jury Testi-

mony

Burke also claims that the district court erred in failing

to dismiss the indictment after FBI Special Agent Richard

Hardgrave testified falsely before the grand jury. A grand

juror asked Agent Hardgrave whether the FBI’s investiga-

tion had uncovered any information implicating someone

other than Burke’s parents as the source of the handcuff

key. Agent Hardgrave responded that the FBI “had no

further leads” regarding how Burke had obtained the key.

He also stated that “we haven’t had any statement from any

other people indicating anyone else” but Burke’s parents

smuggled the handcuff key into the MCC. Burke argues

that this testimony was false because several individuals

had made statements to the FBI about the possible source

for the handcuff key. The district court determined that

Agent Hardgrave had not testified falsely because the FBI

had concluded that the other leads were unreliable. R. at

137: 12-13. The court also noted that the grand jury was not

misled because Agent Hardgrave acknowledged that the

FBI had no real proof that Burke himself had the key. Id.

at 13.

Burke challenges the district court’s conclusion with

evidence of additional leads that the FBI had but which

Agent Hardgrave failed to disclose to the grand jury. For

example, statements were made that the key came from

an MCC guard named Huff and that Erickson pur-

chased the key from a person in Cicero, Illinois. We are

unpersuaded. The government obtained the information

about Officer Huff after Agent Hardgrave testified and

received the lead on the second theory only the week before

16 No. 03-3483

Hardgrave testified, which explains why Agent Hardgrave

might not have known about it. Thus, there is no evidence

that the court abused its discretion in denying Burke’s

motion to dismiss the indictment.

F. The Jencks Act Claim

Burke argues that the district court thwarted his right to

cross-examine the government’s witnesses by denying his

request for the government witnesses’ pre-sentence reports.

He maintains that the district court’s failure to produce the

reports constituted a violation of the Jencks Act, 18 U.S.C.

§ 3500, and entitles him to a new trial. We review the

district court’s denial of a motion requesting the production

of witness statements for abuse of discretion. United States

v. Wables, 731 F.2d 440, 447-48 (7th Cir. 1984).

The Jencks Act provides in relevant part:

After a witness called by the United States has testified

on direct examination, the court shall, on motion of the

defendant, order the United States to produce any

statement (as hereinafter defined) of the witness in the

possession of the United States which relates to the

subject matter as to which the witness has testified.

18 U.S.C. § 3500(b). The Act defines a statement as “a

written statement made by said witness and signed or

otherwise adopted by him.” 18 U.S.C. § 3500(e)(1). We have

recently held that the Act does not require disclosure of the

pre-sentence reports of cooperating witnesses to defendants,

as they do not qualify as “statements” within the meaning

of the Act. United States v. McGee, 408 F.3d 966, 974 (7th

Cir. 2005). Our decision in McGee also stated our commit-

ment to safeguarding the confidentiality of pre-sentence

reports. Id. at 973. We noted, however, that if a defendant

believes that a pre-sentence report contains Brady material,

he may request that the district court review the report in

No. 03-3483 17

camera to ascertain whether his suspicions have merit. Id.

at 974 (citing United States v. Anderson, 724 F.2d 596, 598

(7th Cir. 1984)).

Although it is unclear from the briefs, Burke appears

to have made a blanket request for the pre-sentence reports

of approximately 15 of the government’s witnesses. Pretrial

Trans. 10/15/02 at 17. The transcript of the pretrial proceed-

ing reveals that the district court had some misgivings

about the request and did not believe that she had author-

ity to order other judges to produce defendants’ pre-sen-

tence reports. Id. at 78. Yet, rather than close the door

completely on Burke’s request, the court directed Burke to

obtain the reports from the individual judges. Id. at 82. The

court acknowledged that this might take some time and

expressed that she might grant Burke additional time if he

needed it. Id. at 78. Although Burke’s attorney stated that

he would try to comply with the court’s order, there is no

evidence that he submitted further requests for the materi-

als. Id. at 82. In light of our ruling in McGee, the breadth of

Burke’s request, and his lack of diligence, we find that the

court’s denial of Burke’s motion was not an abuse of

discretion.

G. The Materiality of Count Two

Burke contends that Count Two of the superseding

indictment was immaterial to the grand jury’s investigation

and therefore should have been dismissed. Count

Two charged Burke with perjury based on the following

question and answer:

Q. Did you ever tell an inmate that you could smuggle

contraband into the MCC?

A. No, I did not.

R. at 21. Burke maintains that the word “ever” in the count

implicates statements that he made not only before

18 No. 03-3483

Erickson’s escape attempt, but also afterward. Because

the grand jury’s investigation was limited to crimes that

occurred “before and during Erickson’s escape attempt,” id.,

Burke argues that his statements after the escape attempt

were immaterial. Whether a statement is material for

purposes of perjury is a mixed question of law and fact

which we review de novo. United States v. Gaudin, 515 U.S.

506, 511-14 (1995).

To be perjurious, a defendant’s testimony must be

material to the grand jury’s investigation. United States v.

McComb, 744 F.2d 555, 563 (7th Cir. 1984). Materiality

in this context is broadly defined as a statement’s “effect or

tendency to impede, influence, or dissuade the grand jury

from pursuing its investigation.” Id. Even potential interfer-

ence with a line of inquiry can establish materiality. Id. The

government can establish materiality by identifying a nexus

between the defendant’s purportedly false statement and

the scope of the investigation. Id. at 564.

Rock and Taylor were inmates with Burke at the MCC

after he was extradited. They testified that Burke told them

he had smuggled the Erickson handcuff key into the MCC

several years prior. Trial Tr. at 1625-32, 2157-60, 2257. The

testimonies given by Rock and Taylor were clearly material

to the grand jury’s investigation because they spoke directly

to the issue of how Erickson escaped. By the same token,

Burke’s denial that he told Rock and Taylor that he could

smuggle contraband into the MCC was material because it

had the potential to deflect suspicion that he procured the

handcuff key for Erickson. Even though Burke made his

statements to Rock and Taylor several years after the

escape attempt, those statements related back to the time

period that was material to the grand jury’s investigation.

The district court correctly determined that Count Two was

material to the investigation and denied Burke’s motion to

dismiss that count from the indictment.

No. 03-3483 19

H. Sufficiency of the Evidence

Burke argues that the evidence presented at trial was

insufficient to sustain his convictions, particularly his

conviction for Count Five. This court reviews a jury’s

determination for sufficiency of evidence “in the light

most favorable to the government and uphold[s] a jury’s

decision if ‘any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.’ ” United States v. Albarran, 233 F.3d 972, 975 (7th

Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). We will overturn a jury’s verdict only if we find that

“the record contains no evidence, no matter how the

evidence is weighed, from which the jury could have found

guilt beyond a reasonable doubt.” Id. at 975. We review

the district court’s evidentiary rulings for abuse of discre-

tion. Williams, 238 F.3d at 874.

There is no question that the record contains sufficient

evidence in support of Burke’s conviction on each of the five

counts of perjury. There was abundant testimony that

Burke offered to smuggle into the MCC a wide range of

contraband, including handcuff keys. Further, inmates Rock

and Taylor testified that Burke told them that his mother

played a critical role in bringing into the building the

handcuff key that Erickson used in his escape attempt.

Moreover, several inmates stated that they saw and heard

Erickson and Burke arguing in the days immediately prior

to the escape attempt about a debt and the outrageous price

of an item that Burke had provided.

Burke focuses on Count Five because it required that

the jury find not merely that he told others that he had

provided Erickson with the handcuff key, but that he had in

fact procured the key for Erickson. The questions and

answers contained in Count Five read as follows:

Q. Did you provide Mr. Erickson with a handcuff key?

A. No, I did not.

20 No. 03-3483

Q. Did you assist in any way in making a handcuff key

available to any inmate in the MCC?

A. No, I did not.

R. at 21. This admission to Rock and Taylor provided the

jury with a rational basis to conclude that Burke was ly-

ing when he denied providing Erickson with the handcuff

key. Furthermore, the jury was adequately instructed

that they had to find each perjury element, including the

false nature of the declaration contained in Count Five,

beyond a reasonable doubt. We are convinced that the

government’s evidence was sufficient to support a conviction

on Count Five.

Burke also contends that the evidence was insufficient

because the government’s entire case was based upon the

unreliable testimony of inmates who stood to benefit from

cooperating with the government. Again, we disagree. It

is not the business of this court to second-guess the jury’s

credibility determinations. The jury had sufficient reason to

find that the testimony given by the government’s witnesses

was credible. Tai, Lutrell, and Hogan had all been released

from prison by the time they testified, so they had little or

nothing to gain by testifying. Also, their stories, along with

those of their fellow inmates, were corroborated. For

example, Tai, Rock, and Taylor corroborated their testimony

with contemporaneous documents that they had either

written themselves or received from Burke. Significantly,

the two sets of inmates—the first set who knew Burke at

the MCC before his initial release on parole and the second

set who met him after he was extradited—had never met

each other and had served their sentences at different

times. Despite that fact, the testimonies they gave were

remarkably consistent. For these reasons, we believe that

the government’s evidence was credible and sufficient to

support the jury’s decision to convict Burke on five counts

of perjury.

No. 03-3483 21

I. The Booker Claim

Burke argues that his sentence violated the Sixth Amend-

ment as interpreted in United States v. Booker. The district

court sentenced him to 240 months’ imprisonment pursuant

to the Sentencing Guidelines. Because Burke was being

sentenced for perjury, the Guidelines directed the district

court to apply the guideline relevant to the criminal offense

with respect to which the defendant gave false testimony.

U.S.S.G. § 2J1.3(c)(1). The court chose to apply the cross-

reference for aggravated assault, which generated a base

offense level of 15. U.S.S.G. § 2A2.2(a). The court’s applica-

tion of the aggravated assault guideline triggered additional

enhancements for more than minimal planning (2 points),

discharge of a firearm (5 points), and bodily injury

(6 points); however, the guideline capped the cumulative

adjustment for the firearm and bodily injury enhancements

at 9 points. U.S.S.G. § 2A2.2(b). That yielded an offense

level of 26, which the court reduced to 20 because Burke

was an accessory after the fact. Id. The district court then

applied enhancements for obstruction of justice (2 points,

§ 3C1.1), official victim (3 points, § 3A1.2(a)), and reckless

endangerment (2 points, § 3C1.2), as well as upward

departures for disruption of a governmental function

(2 points, § 5K2.7) and the deaths of Officer Belluomini

(2 points) and Officer Frakes (2 points). All told, the ad-

justments yielded a total offense level of 33.

Next, the district court selected a criminal history

category. The Guidelines indicated that a criminal history

category IV was appropriate because Burke committed the

offenses while under court supervision. The court, however,

believed that would significantly under-represent Burke’s

criminal past and likelihood of recidivism. Accordingly, the

court departed upward to a criminal history category V,

which—in combination with the total offense level of

33—generated a sentencing range of 210 to 262 months.

The court sentenced Burke in the middle of that range.

22 No. 03-3483

The district court stated in her sentencing memoran-

dum that the Guidelines “directed” her to apply a cross-

reference guideline. This suggests that the court applied the

Guidelines in a mandatory fashion, which we now know was

error. United States v. Castillo, 406 F.3d 806, 823 (7th Cir.

2005). Burke, however, preserved this argument below by

objecting to his sentence on the grounds that it violated

Apprendi v. New Jersey, 530 U.S. 466 (2000), which pres-

aged Booker. Thus, we review for harmless error. United

States v. Schlifer, 403 F.3d 849, 854 (7th Cir. 2005). An

error is harmless only if it did not affect the district court’s

choice of sentence. Id. (citing United States v. Smith, 332

F.3d 455, 460 (7th Cir. 2003)). While the court gave

thoughtful consideration to its choice of a cross-referencing

guideline and indicated its approval of several of the

enhancements, the government has not established that the

court would impose the same sentence had the Guidelines

been merely advisory. See United States v. Larson, 417 F.3d

741, 746-47 (7th Cir. 2005) (recognizing that the govern-

ment bears the burden of establishing that error was

harmless). Because the court’s error was not harmless, we

vacate Burke’s sentence and remand for resentencing

consistent with Booker.

III. Conclusion

For the foregoing reasons, we AFFIRM Burke’s convic-

tion but VACATE his sentence and REMAND to the district

court for resentencing consistent with Booker.

No. 03-3483 23

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-28-05