United States v. Burkhow
1:19-cr-00059
N.D. IowaJan 8, 2020Background
- Defendant Raven Meader Burkhow was charged in a Second Superseding Indictment with 42 counts including: conspiracy and drug distribution counts, multiple 18 U.S.C. § 924(c) counts for use/possession of firearms in furtherance of drug crimes (Counts 8–10), machinegun/NFA registration and transfer counts, and unregistered/serial-number removal counts (Counts 11–42).
- Defendant filed a third motion to dismiss (Doc. 89) arguing the grand jury received no competent evidence of essential elements for Counts 8–42 (use in furtherance for § 924(c) counts; knowledge/registration/serial-number elements for NFA counts).
- The motion was filed after the pretrial deadline; defendant says late disclosure of the September 25, 2019 grand jury transcript (received Dec. 3, 2019) caused the delay.
- The government showed many firearm-related counts originated in an earlier superseding indictment; the court held timeliness/good-cause differs by count (some counts were new; others were transferred).
- On the merits, the court reviewed grand jury testimony and found competent evidence supporting the essential elements for Counts 8–42 and denied the motion in full; the court also held prosecutors have no obligation to present exculpatory evidence to the grand jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / good cause for late motion | Govt: many counts derived from earlier superseding indictment; defendant had opportunity to move earlier | Meader: late receipt of Sept. 25 grand jury transcript prevented timely challenge | Court: motion untimely as to Counts 12–28, 30–42 and most firearms in Count 10; good cause shown only for Counts 8, 9, 11, 29 and the pipe bomb in Count 10 |
| Sufficiency re: Counts 8–9 (§ 924(c) "use") | Govt: grand jury heard CI purchases of guns contemporaneous with drug buys; agent testimony and reports provided competent evidence of "use" | Meader: agent testimony was leading; lacked evidence of active employment; guns may have been unloaded/not used | Court: grand jury had competent evidence (simultaneous firearm and drug transactions and other testimony); Counts 8–9 not dismissed |
| Sufficiency re: Count 10 and possession in furtherance (§ 924(c)) | Govt: firearms were found staged in apartment with drugs; pipe bomb and bomb-making supplies were found | Meader: limited/leading testimony about pipe bomb; lack of proof guns aided drug crimes | Court: evidence supported inference firearms (including pipe bomb) were possessed in furtherance of drug trafficking; Count 10 sustained |
| Sufficiency re: Counts 11–42 (NFA/registration/knowledge/serial numbers) | Govt: testimony showed firearms/stationing in apartment, sales activity, lack of registration, and presence of ghost guns | Meader: no evidence presented that he knew items were machineguns/silencers/pipe bomb or knew registration/serial-number status | Court: knowledge and registration elements reasonably inferred from presented facts; grand jury had competent evidence; counts sustained |
| Obligation to present exculpatory evidence / leading questions | Govt: no duty to present exculpatory evidence to grand jury; leading questions permissible | Meader: reliance on leading questions and omitted exculpatory facts undermines indictment | Court: prosecutor not required to present exculpatory evidence; leading questions do not invalidate grand jury finding |
Key Cases Cited
- Bailey v. United States, 516 U.S. 137 (active employment of a firearm is required for certain § 924(c) convictions)
- United States v. Williams, 504 U.S. 36 (prosecutor has no duty to present exculpatory evidence to the grand jury)
- Costello v. United States, 350 U.S. 359 (an indictment valid on its face calls for trial; grand jury sufficiency is not tested by a preliminary evidentiary inquiry)
- Calandra v. United States, 414 U.S. 338 (grand jury proceedings are not a forum for determining guilt; indictment suffices to require trial)
- United States v. Wadlington, 233 F.3d 1067 (8th Cir.) (grand jury proceedings enjoy a strong presumption of regularity)
- United States v. Hayes, 574 F.3d 460 (8th Cir.) (standards for adequacy of an indictment)
- United States v. Polychron, 841 F.2d 833 (8th Cir.) (indictment must allege acts constituting a violation of law)