United States v. Burke
2011 U.S. App. LEXIS 2082
| 10th Cir. | 2011Background
- Burke found child pornography on CDs at home; wife alerted police and noted Burke’s prior sex offender status and firearms at residence.
- Affidavit to obtain the search warrant stated Burke’s wife found child pornography but lacked detailed image descriptions.
- Magistrate issued a warrant to search Burke’s home and truck for computer media and firearms; authorities seized firearms and extensive electronic media.
- Forensics later identified 1,155 images of pornography; some victims were known from the National Center for Missing and Exploited Children.
- Burke pled guilty to possession of child pornography and felon in possession of firearms under a plea agreement waiving most appellate rights.
- District court sentenced Burke to 168 months’ imprisonment and 5 years’ supervised release; Burke challenges suppression and sentencing, and argues plea breach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the suppression issue was waived and reviewable | Burke (plaintiff) argues affidavits were insufficient | Burke contends suppression issues should be reviewed on appeal | Waived; Rule 12(e) governs and no good cause shown for failure to raise |
| Whether the search warrant was sufficiently particular | Burke argues warrant was too general for computer searches | Burke argues warrant failed to limit search to porn-related files | Warrant sufficiently particularized to meet Fourth Amendment standards |
| Whether the government breached the plea agreement by using 1,155 images at sentencing | Burke claims breach due to discrepancy from plea recitation (155 images) | Government did not breach; it could rely on information from independent sources | No breach of the plea agreement |
| Whether the gun-charge sentence was properly considered given the plea waiver | Burke argues improper sentence or improper consideration of the gun charge | Waiver of appellate rights bars the challenge to the gun sentence | Appellate waiver valid; gun-sentence appeal waived under the plea agreement |
Key Cases Cited
- United States v. Brooks, 438 F.3d 1231 (10th Cir. 2006) (waiver of suppression arguments on appeal is standard when not raised timely)
- United States v. Buchanan, 985 F.2d 1372 (8th Cir. 1993) (waiver/documented failure to raise suppression issues)
- United States v. Dewitt, 946 F.2d 1497 (10th Cir. 1991) (failure to raise argument waives it on appeal, unless good cause shown)
- United States v. Rose, 538 F.3d 175 (3d Cir. 2008) (Rule 12 waiver vs. plain error; focus on specific suppression arguments)
- United States v. Hamilton, 587 F.3d 1199 (10th Cir. 2009) (good-cause exception to waiver in suppression context)
- United States v. Olano, 507 U.S. 725 (1993) (waiver vs forfeiture; plain-error review framework in Rule 52(b) context)