Federal judge rules against Nevada Hells Angel in child pornography appeal
By BEN NEARY Associated Press
May 28, 2013 - 8:37 pm EDT
CHEYENNE, Wyoming — A federal judge has denied an appeal from a former Nevada brothel owner and Hells Angels member who says he didn't get an adequate defense or fair trial before his conviction five years ago on child pornography charges in Wyoming.
David Burgess is serving a 15-year prison sentence on his 2008 conviction in Wyoming on federal charges of possession and transportation of child pornography.
U.S. District Judge Alan B. Johnson of Cheyenne on Friday dismissed Burgess' request for a new trial. In a 149-page ruling, Johnson concluded that Burgess' claims that he didn't get an adequate defense were without merit.
"The file, records, and all submissions by the parties conclusively show he is not entitled to the relief he seeks," Johnson stated.
Burgess, a member of a Nevada chapter of the Hells Angels, owned a legal brothel, the Old Bridge Ranch, near Reno, Nevada Prosecutors say investigators found child pornography on Burgess' computer following a 2007 traffic stop in western Wyoming.
A federal appeals court in Denver already has upheld Burgess' conviction.
"There can be no doubt, let alone a grave doubt, that Burgess knowingly possessed child pornography as he traveled from Nevada into Wyoming," a three-judge panel of the 10th Circuit Court of Appeals in Denver ruled in 2009. The U.S. Supreme Court later that year refused to review Burgess' case.
Burgess filed papers in 2010 with Judge Johnson, who had presided over his 2008 trial. Burgess claimed his defense lawyer, James Barrett, a veteran assistant federal public defender in Cheyenne, was inadequate and had failed to prepare for trial or investigate his case.
For his appeal to Johnson for a new trial, Burgess retained prominent San Francisco civil rights lawyer J. Tony Serra. Attempts to reach Serra for comment on Tuesday were unsuccessful.
Kate Hallinan, a San Francisco lawyer who works with Serra, said Tuesday that Burgess' legal team is reviewing Johnson's ruling and may seek permission from the 10th Circuit Court of Appeals to appeal it there.
Prosecutor Jim Anderson of the U.S. Attorney's Office in Cheyenne prosecuted Burgess and opposed his request for a new trial. John Powell, spokesman for the office, said Tuesday the office had no comment on Johnson's ruling.
In his court filing opposing Burgess request for a new trial, Anderson dismissed Burgess' claims that Barrett had failed to prepare defense witnesses so they could present Burgess as a "great member of the community."
"This is pure fantasy," Anderson wrote in 2011. "Regardless of how much witness preparation had occurred in this case, it would not have changed the basic facts: on July 24, 2007,(Burgess) a brothel owner and member of an outlaw motorcycle gang, was apprehended in possession of drugs and tens of thousands of images of child pornography."
Burgess was arrested after state troopers pulled over his motor home, called the "War Wagon," on Interstate 80 in far western Wyoming. He told troopers he was on his way to the 2007 Hells Angels USA Run in Eureka Springs, Arkansas
Troopers testified that they originally pulled over the motor home because of an expired motorcycle trailer tag. They stated that a drug dog alerted to the vehicle, which prompted a search that turned up marijuana and cocaine.
Following the traffic stop, authorities searched Burgess' computer that troopers found in the motor home on the grounds that it might show evidence of drug-dealing, court records say. Instead, prosecutors have said that agents at the state's Internet Crimes Against Children Task Force turned up thousands of images of child pornography.