NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-482 D.C. No. Plaintiff - Appellee, 4:21-cr-00062-BMM-1 v. MEMORANDUM* MICHAEL JAMES BURKE,
Defendant - Appellant.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Argued and Submitted March 28, 2024 Seattle, Washington
Before: WARDLAW, PARKER **, and MILLER, Circuit Judges.
Michael James Burke appeals from his convictions on two counts of
aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153(a) and
2241(c), and one count of abusive sexual conduct, in violation of 18 U.S.C.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, United States Circuit Judge for the Court of Appeals, 2nd Circuit, sitting by designation. §§ 1153(a) and 2244(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
We review the district court’s denial of a motion to dismiss for
preindictment delay for abuse of discretion but review its finding with respect to
prejudice for clear error. United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir.
1992). We review de novo the sufficiency of the evidence to determine “whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review for
abuse of discretion the district court’s admission of testimony under Federal Rule
of Evidence 403, Palmerin v. City of Riverside, 794 F.2d 1409, 1411, 1413 (9th
Cir. 1986) (reviewing admission of evidence after an unsuccessful motion in
limine); United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001) (holding that
evidence admissible under Rule 414 is still subject to Rule 403’s balancing test),
and its decision to impose courtroom security measures, United States v. Shryock,
342 F.3d 948, 974 (9th Cir. 2003). Finally, we review de novo whether the district
court violated a defendant’s Sixth Amendment right to present a defense. United
States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010).
1. The district court did not abuse its discretion in denying Burke’s motion
to dismiss for preindictment delay based on the four-year gap between the start of
2 23-482 the government’s investigation and Burke’s indictment. To succeed on a motion to
dismiss for preindictment delay, a defendant must first prove that he “suffered
actual, non-speculative prejudice from the delay.” United States v. Sherlock, 962
F.2d 1349, 1353 (9th Cir. 1992). While Burke generally alleges that the delay
prevented him from developing additional witness testimony, he offers no evidence
that the loss of that testimony “meaningfully has impaired his ability to defend
himself.” United States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007)
(quoting Huntley, 976 F.2d at 1290).
2. A.L. and L.L.’s testimony that Burke repeatedly sexually assaulted them
is sufficient to support his conviction. Although Burke claims that A.L. and L.L.’s
testimony about their abuse and identification of him as their abuser was
unreliable, we may not question the jury’s determination that their testimony was
sufficiently credible to find Burke guilty. See United States v. Nevils, 598 F.3d
1158, 1170 (9th Cir. 2010) (en banc).
3. The district court acted within its discretion in determining that the
probative value of testimony about Burke’s alcohol and marijuana consumption at
A.L. and L.L.’s home outweighed its modest prejudicial effect. As the district court
observed, testimony regarding Burke’s substance use helped set the scene by
explaining his relationship with A.L. and L.L.’s family and how he gained access
to his victims. Because such testimony was “necessary . . . to permit the prosecutor
3 23-482 to offer a coherent and comprehensible story regarding the commission of the
crime,” United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012–13 (9th Cir.
1995), the district court correctly analyzed the evidence under Rule 403, not under
Rule 404(b) as inadmissible character evidence.
4. The district court did not abuse its discretion in preventing Burke from
using a complete ballpoint pen. To determine whether a security measure violated
a defendant’s right to a fair trial, we “look at the scene presented to jurors and
determine whether what they saw was so inherently prejudicial as to pose an
unacceptable threat to [the] defendant’s right to a fair trial.” Holbrook v. Flynn,
475 U.S. 560, 572 (1986). If the security measures were not inherently prejudicial,
we “then consider[] whether the measures actually prejudiced members of the
jury.” Hayes v. Ayers, 632 F.3d 500, 522 (9th Cir. 2011). Unlike shackling, see
Deck v. Missouri, 544 U.S. 622, 635 (2005), wearing prison garb, see Estelle v.
Williams, 425 U.S. 501, 503–05, 512 (1976), or compelled utterances of guilt, see
United States v. Olvera, 30 F.3d 1195, 1197–98 (9th Cir. 1994), use of the inner
cartridge of a pen is not inherently prejudicial. As the district court noted, it is
unclear whether the jury could even observe Burke’s writing instrument, as he was
seated far from the jury with a monitor in front of him. And in any case, Burke
provided no evidence that “jurors were actually influenced by the measures he
complains of.” Hayes, 632 F.3d at 522.
4 23-482 5. The district court did not abuse its discretion in admitting J.G.’s testimony
under Rule 414. In determining whether the prejudicial effect of Rule 414 evidence
outweighs its probative value, we consider the following non-exhaustive factors:
“(1) ‘the similarity of the prior acts to the acts charged,’ (2) the ‘closeness in time
of the prior acts to the acts charged,’ (3) ‘the frequency of the prior acts,’ (4) the
‘presence or lack of intervening circumstances,’ and (5) ‘the necessity of the
evidence beyond the testimonies already offered at trial.’” LeMay, 260 F.3d at
1028 (quoting Doe ex rel. Rudy-Glanzer v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-482 D.C. No. Plaintiff - Appellee, 4:21-cr-00062-BMM-1 v. MEMORANDUM* MICHAEL JAMES BURKE,
Defendant - Appellant.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Argued and Submitted March 28, 2024 Seattle, Washington
Before: WARDLAW, PARKER **, and MILLER, Circuit Judges.
Michael James Burke appeals from his convictions on two counts of
aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 1153(a) and
2241(c), and one count of abusive sexual conduct, in violation of 18 U.S.C.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, United States Circuit Judge for the Court of Appeals, 2nd Circuit, sitting by designation. §§ 1153(a) and 2244(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
We review the district court’s denial of a motion to dismiss for
preindictment delay for abuse of discretion but review its finding with respect to
prejudice for clear error. United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir.
1992). We review de novo the sufficiency of the evidence to determine “whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review for
abuse of discretion the district court’s admission of testimony under Federal Rule
of Evidence 403, Palmerin v. City of Riverside, 794 F.2d 1409, 1411, 1413 (9th
Cir. 1986) (reviewing admission of evidence after an unsuccessful motion in
limine); United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001) (holding that
evidence admissible under Rule 414 is still subject to Rule 403’s balancing test),
and its decision to impose courtroom security measures, United States v. Shryock,
342 F.3d 948, 974 (9th Cir. 2003). Finally, we review de novo whether the district
court violated a defendant’s Sixth Amendment right to present a defense. United
States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010).
1. The district court did not abuse its discretion in denying Burke’s motion
to dismiss for preindictment delay based on the four-year gap between the start of
2 23-482 the government’s investigation and Burke’s indictment. To succeed on a motion to
dismiss for preindictment delay, a defendant must first prove that he “suffered
actual, non-speculative prejudice from the delay.” United States v. Sherlock, 962
F.2d 1349, 1353 (9th Cir. 1992). While Burke generally alleges that the delay
prevented him from developing additional witness testimony, he offers no evidence
that the loss of that testimony “meaningfully has impaired his ability to defend
himself.” United States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007)
(quoting Huntley, 976 F.2d at 1290).
2. A.L. and L.L.’s testimony that Burke repeatedly sexually assaulted them
is sufficient to support his conviction. Although Burke claims that A.L. and L.L.’s
testimony about their abuse and identification of him as their abuser was
unreliable, we may not question the jury’s determination that their testimony was
sufficiently credible to find Burke guilty. See United States v. Nevils, 598 F.3d
1158, 1170 (9th Cir. 2010) (en banc).
3. The district court acted within its discretion in determining that the
probative value of testimony about Burke’s alcohol and marijuana consumption at
A.L. and L.L.’s home outweighed its modest prejudicial effect. As the district court
observed, testimony regarding Burke’s substance use helped set the scene by
explaining his relationship with A.L. and L.L.’s family and how he gained access
to his victims. Because such testimony was “necessary . . . to permit the prosecutor
3 23-482 to offer a coherent and comprehensible story regarding the commission of the
crime,” United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012–13 (9th Cir.
1995), the district court correctly analyzed the evidence under Rule 403, not under
Rule 404(b) as inadmissible character evidence.
4. The district court did not abuse its discretion in preventing Burke from
using a complete ballpoint pen. To determine whether a security measure violated
a defendant’s right to a fair trial, we “look at the scene presented to jurors and
determine whether what they saw was so inherently prejudicial as to pose an
unacceptable threat to [the] defendant’s right to a fair trial.” Holbrook v. Flynn,
475 U.S. 560, 572 (1986). If the security measures were not inherently prejudicial,
we “then consider[] whether the measures actually prejudiced members of the
jury.” Hayes v. Ayers, 632 F.3d 500, 522 (9th Cir. 2011). Unlike shackling, see
Deck v. Missouri, 544 U.S. 622, 635 (2005), wearing prison garb, see Estelle v.
Williams, 425 U.S. 501, 503–05, 512 (1976), or compelled utterances of guilt, see
United States v. Olvera, 30 F.3d 1195, 1197–98 (9th Cir. 1994), use of the inner
cartridge of a pen is not inherently prejudicial. As the district court noted, it is
unclear whether the jury could even observe Burke’s writing instrument, as he was
seated far from the jury with a monitor in front of him. And in any case, Burke
provided no evidence that “jurors were actually influenced by the measures he
complains of.” Hayes, 632 F.3d at 522.
4 23-482 5. The district court did not abuse its discretion in admitting J.G.’s testimony
under Rule 414. In determining whether the prejudicial effect of Rule 414 evidence
outweighs its probative value, we consider the following non-exhaustive factors:
“(1) ‘the similarity of the prior acts to the acts charged,’ (2) the ‘closeness in time
of the prior acts to the acts charged,’ (3) ‘the frequency of the prior acts,’ (4) the
‘presence or lack of intervening circumstances,’ and (5) ‘the necessity of the
evidence beyond the testimonies already offered at trial.’” LeMay, 260 F.3d at
1028 (quoting Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir.
2000)). The district court thoroughly analyzed the LeMay factors to determine that,
while the first four factors weighed against admission, the last factor weighed in
favor of admission. As to the last factor, the district court found that the necessity
of the evidence favored the government because A.L. and L.L.’s credibility would
be at issue and the government otherwise lacked contemporaneous witnesses. It
was reasonable, based on that analysis, to allow the government to introduce
testimony from either, but not both, of its proposed Rule 414 witnesses. And it was
appropriate for the government, rather than the court, to select which witness to
present.
6. The record does not support Burke’s claim that the district court’s brief
admonition to his counsel during closing argument to “stick to the evidence” and
stop “testifying” infringed his fundamental right to present a relevant theory of his
5 23-482 defense. The court’s statement did not discredit the defense’s theory; the court
objected merely to counsel’s statement that “it was easy for [A.L. and L.L.] to
supplant [Burke’s] face in their memories over the face of their real abuser.” There
is no evidence that Burke was forced to abandon arguments relevant to his theory
that A.L. and L.L. misidentified Burke due to their faulty memories.
AFFIRMED.
6 23-482