Case 2:11-cr-01004-LRR Document 23 Filed 07/29/11 Page 1 of 4 U.S.

Department of Justice United States Attorney Northern District of Iowa

_________________________________________________________________________________________________________________________ 401 First Street S.E. Suite 400 Cedar Rapids, Iowa 52401-1825 (319) 363-6333 FAX (319) 363-1990 TTY (319) 286-9258

July 29, 2011 The Honorable Jon Stuart Scoles United States Magistrate Judge United States Courthouse 4200 C Street SW, Building B Cedar Rapids, Iowa 52404 Re: United States v. Robert Burke, CR 11-1004-LRR

Dear Judge Scoles: I am writing in regard to the Rule 11 hearing scheduled to be held at 2:00 p.m. on Monday, August 1, 2011. The attorneys appearing at the hearing will be Mark Tremmel and Mark Brown. Count 1 of the Superseding Indictment (hereinafter Indictment) charges that defendant used and attempted to use minors under the age of 18 to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, in violation of 18 U.S.C. 2251(a) and 2251(e). Count 2 of the Indictment charges that defendant knowingly distributed and attempted to distribute visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(2) and 2252(b)(1). Count 3 of the Indictment charges that defendant knowingly received and attempted to receive visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(2) and 2252(b)(1). Count 4 of the Indictment charges that defendant knowingly possessed and attempted to possess visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. 2252A(a)(5)(B) and 2252A(b)(2). Count 5 of the Indictment charges that defendant knowingly possessed and attempted to possess visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. 2252A(a)(5)(B) and 2252A(b)(2). Count 6 of the Indictment charges that defendant knowingly possessed and attempted to possess visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. 2252A(a)(5)(B) and 2252A(b)(2). Count 7 of the Indictment charges that defendant knowingly possessed and attempted to possess visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. 2252A(a)(5)(B) and 2252A(b)(2). Defendant has agreed to plead guilty to Count 1 of the Superseding Indictment, with Counts 2-7 to be dismissed at the sentencing hearing. The parties have entered into a plea agreement.

Case 2:11-cr-01004-LRR Document 23 July 29, 2011 Page 2 STATUTES

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The statute charged in Count 1, 18 U.S.C. 2251, provides in pertinent part: (a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed. Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years . . . .

(e)

18 U.S.C. 2256 provides in pertinent part: For the purposes of this chapter, the term (1) (2) minor means any person under the age of eighteen years; (A) . . . sexually explicit conduct means actual or simulated (v) lascivious exhibition of the genitals or pubic area of any person;

(5)

visual depiction includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image . . . . ELEMENTS OF THE OFFENSE

The elements of Count 1 are: 1. In or between January 2011 and June 3, 2011, certain males who attended Sageville Elementary School were under eighteen years of age;

Case 2:11-cr-01004-LRR Document 23 July 29, 2011 Page 3 2.

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Defendant knowingly used the referenced minors to engage in sexually explicit conduct; Defendant voluntarily and intentionally did this for the purpose of producing visual depictions of such conduct; and Visual depictions of such conduct were produced using materials that had previously been shipped or transported in interstate or foreign commerce, namely, cameras, memory cards, computers, and hard drives that had been manufactured outside Iowa. MAXIMUM AND MINIMUM PENALTIES

3.

4.

Count 1 is punishable by: (1) at least 15 years and not more than 30 years imprisonment without the possibility of parole; (2) a fine of not more than $250,000; (3) a mandatory special assessment of $100; and (4) a term of supervised release of at least 5 years to life. OTHER CONSEQUENCES OF THE PLEA Since this case was brought under the provisions of Chapter 110 of Title 18, defendant will be required to register as a sex offender. As a felon, defendant will lose the right to vote, to serve on a jury, to hold public office, and to possess a firearm and ammunition. Other consequences could include the potential for enhanced penalties in the event of any future felony convictions. Furthermore, defendant could face additional penalties for failure to appear at sentencing or any other required court appearances in this matter (up to 10 years of consecutive prison time pursuant to 18 U.S.C. 3146(b)(1)(A)) and could face consecutive penalties for committing an offense while on release (up to 10 years for a felony and up to one year for a misdemeanor pursuant to 18 U.S.C. 3147). FACTUAL BASIS FOR THE PLEA A factual basis for the plea is contained in the attached plea agreement. MISCELLANEOUS PLEA AGREEMENT PROVISIONS APPEAL WAIVER The plea agreement entered into by the parties contains a waiver of defendants right to appeal or collaterally attack the sentence. See Paragraph 29. Pursuant to Federal Rule of Criminal Procedure 11(b)(1)(N), the government asks the Court to address defendants appeal waiver at the time of the guilty plea hearing.

Case 2:11-cr-01004-LRR Document 23 July 29, 2011 Page 4 DETENTION

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Defendant is in custody. Detention is mandatory. Sincerely, STEPHANIE M. ROSE United States Attorney By: s/ Mark Tremmel MARK TREMMEL Assistant United States Attorney cc: Mark Brown United States Probation

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