Guest Post

This post is from the blog of John Burke an inmate at MDC Brooklyn. His blog can be found at www.johnanthonyburke.com
His story is just another example of the injustices committed by our federal government. Please read and share--

Hello! My name is John Burke and I am currently incarcerated in MDC Brooklyn, New York. I am here on charges in which I have already been tried for by the Queens County District Attorney's Office. Even though the United States Constitution, Fifth Amendment (1791) also known as Bill of Rights states, "...Nor shall any person be subject for the same offence to be 'twice put in jeopardy' of Life or Limb; nor shall be compelled in Any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, with out due process of law...", the U.S. Federal Government is determined to try me all over again for crimes that I've already stood trial for.

Richard Beeman, who is a professor of history at the University of Pennsylvania, in his book "The Penguin Guide to the U.S. Constitution" states on page 66, "The provision of the Fifth Amendment preventing double jeopardy stipulates that individuals CANNOT be tried for the same crime more than once. If a defendant is acquitted of a crime, the government does not have the right to prosecute that individual again, AND if a defendant is convicted, the government MAY NOT impose multiple punishments for the same crime".

In my situation, I am about to be prosecuted again for crimes that two juries have already acquitted me of. I face the possibility of multiple punishments for a crime that I am already serving twenty-five years for which is in straight violation of the quotes above. Please allow me to explain as simple as possible.

First of all, I was tried and found NOT guilty by a Queens County Jury in 1983. In that case, I had 5 alibi witnesses testifying on my behalf as to my whereabouts at the time the crime was committed. Now some 28 years later, four of the five witnesses are deceased and unable to testify for me again. However, I should not need their testimony a second time if the U.S. Constitution was adhered to by the Federal Government. "...Nor shall any person be subject for the same offence to be 'twice put in jeopardy' of Life or Limb..." (Bill of Rights 1791 Amm. v)

Secondly, in the year 2001 I was arrested and in 2002 I had another trial in Queens County where there were 9 charges lodged against me covering two separate crimes which occurred in different years, 1991 & 1996. Out of these 9 charges a jury found me guilty on two of them and the presiding Judge overturned one of them on the day I got sentenced. Subsequently, I was found guilty of only one of the 9 charges. The jury believed that I committed the crime in 1991, however, they exonerated me on ALL the other charges pertaining to the 1996 crime. On May 7, 2003 the Judge sentenced me to serve 25 years to life in a New York State prison for the conviction of the 1991 crime. I have served over 10 years on that sentence.

Now, the United States Federal Government has indicted me in 2008 on those same three crimes that I already went to trial for. The crimes are as old as the years of 1982, 1991, and 1996. As I mentioned earlier, I was found NOT guilty of two of them (1982,1996) and I am serving 25 years at this very moment for the third one (1991). Remember our Constitution? The Fifth Amendment? According to them, I CANNOT be tried twice for the same crime! That's what you think!!! Our Government gets away with trying a person twice for the same crime because the court says that Federal Government is a different sovereign than the State. Therefore, anytime a State fails to get a conviction after a trial, the Federal Government is waiting in the background to try that person again for the same crime. I am even being tried for the crime that I am serving 25 years for. What about multiple punishments for the same crime? Does the Fifth Amendment, the provision preventing Double Jeopardy or Multiple Punishments even exist?

Let me back up to the year 2001 to explain the sequence of events that led me to this position. Drug use that resulted in very bad decisions on my part was the cause of my wrongful behavior, which in turn always led me to prison in the past. In prison, I would clean up and excel in doing the right thing for myself and my family. However, when I would eventually get released, my addiction was waiting for me at the door. I would fall victim to my addiction again and again thru my own stupidity and character defects. They say in recovery that you should change the people, places and things in your life for a successful recovery. I never did. I always thought I did not have to in order to stay clean. I was WRONG!

After the conviction in 2002 of the 1991 crime, I was in Rikers Island, disgusted with everything; my on and off drug abuse was destroying me and my family. This time was different than all the rest because I would be receiving 25 years. There would be no going home after a few years. My wife and children were devastated as a result of my conviction. I told my family that I was finished with my past and the people that I knew. Not one friend offered to help me when I got into this trouble and I did not want any of their help now. Unbeknownest to me at that time was that my family was all I ever needed. I decided to change the people in my life at this time and cut off my past relationships. I owed it to myself and my loved ones. I knew that I could still be a positive influence in the lives of my children and that was and is my goal. I am happily married and a very proud father of four beautiful children, two sets of twins. At the time of my conviction, they were 11 and 9 years old. I was determined to instill the right set of morals and principles in their life. I did not want any of my children to live the life that I did. I tried to teach them by using the bad choices that I made in life as an example. In order to further this decision to change, I joined many prison programs.

At Shawangunk Correctional Facility, I participated and completed a 6 month residential drug program called RSAT (Residential Substance Abuse Treatment). I also participated and completed a 12 week violent program called ART (Aggression Replacement Training). Upon completion of both programs, I requested and was granted to stay on as a facilitator. I wanted to make a difference in a young man's life who was eventually going home. Some of the other programs that I have completed in prison are a Parenting Course (Parts one & two) taught by the Osborne Society, a Kairos Weekend, a 12 month computer course, and a 12 week law library course. I have been an RSAT and ART facilitator for over a year each and participated in GED tutoring to other inmates. I attended Bible studies and Church services to help bring about a transformation. I was getting away from my past ways and it felt good. During my incarceration, I received regular visits from my wife, all four children, mother, siblings, aunts, uncles, and cousins. I have a very loving and supportive family to which I am thankful for. I was looking forward to getting back to them with a new outlook in life.

While serving my time in the most positive way that I could think of, unfortunately, I was subpoenaed to MDC Brooklyn in 2005. The Federal Government was seeking my cooperation against various alleged Gambino crime family members. I informed my attorney Richard R. Leff at that time that I knew of no crimes committed by any Gambino members and I would not lie in order to set myself free! After two months of being in MDC Brooklyn I was returned to the State prison from which I came.

In July 2007, I was again subpoenaed by the Federal Government, however, this time it was to Tampa, Florida. The subpoena was for me to appear before a grand jury. I was served with a paper stating that I was a target of a Federal Grand Jury. I could not understand being in Tampa because I only went to Florida two times in my entire life and both of them were for a vacation in Miami. In the first week of August 2007, I was being detained in Hillsborough County jail. The US Attorney then told me that the Government was seeking my cooperation. I requested counsel and was given one. After a few weeks, I was told by counsel that the Government wanted my cooperation against John Gotti Jr. I told my counsel that I did not know him and that I would not lie in order to free myself. My brother Tony flew from New York to Florida to visit me and on the same day after the visit I was moved approximately 2 hours away to Citrus County jail. I felt like the Government was purposely keeping me isolated from my family in an attempt to weaken my resolve. I was never called to appear before the Grand Jury in August as the subpoena stated. I believe it was all a plan by the Federal Government to see if I would cooperate. The government was keeping me away from my family in New York which was causing a hardship on my wife, children, and mother. Approximately in September of 2007, counsel stated to me the following: "John, the government would like to fly your wife and children down to Florida in order to have a meeting. They just want you to listen to what they can do for you and your family. They want you and your family to listen to their offer and you do not have to say anything at this meeting. They just want you to hear them out before you make a decision on cooperating". Again I repeated to my attorney that I could not make up lies to get out of serving 25 years. I even told him that I feel like I am between a rock and a hard place. If I do not meet with them, the Government will think I am a hard ass and if I do meet with them then they will believe that I have something to deal with. Neither one of those statements are true. I just wanted to be left alone and sent back to New York. Finally, I was returned to the prison in New York the first week of November 2007.

One year later in the first week of August 2008, I found out thru the Daily News that I was indicted by a Federal Grand Jury in the Middle District of Florida. At the same time John Gotti Jr. was arrested in a related indictment in Tampa, Florida. I believe my indictment was a result of my REFUSAL TO COOPERATE with the Federal Government because the charges were nothing new and nothing recent. They are the same crimes that I already spoke about, crimes that I was found not guilty of and the one that I am serving 25 years for. I was sent to Tampa, Florida in September of 2008 and housed in Pinellas County Jail. The Government was trying to prosecute me in Tampa, Florida for crimes that took place in New York. Was it a case of jury shopping on their part??? I stayed in Tampa, Florida until March 2009 and was returned to New York on a court ordered "Change of Venue Motion."

I've been in MDC Brooklyn ever since and I am awaiting on my trial date in September. My family is traumatized and cannot believe that I am being tried again on crimes that I've already been acquitted of. Also, these past three years have taken a toll on my loved ones. My father just passed away in January of 2011 and of course the Government refused my request to be escorted to the wake for a half hour. My wife keeps hoping that this nightmare will end soon and I keep telling her to continue in her faith. It looks like I will have to stand trial one more time on the same charges that I've already been adjudicated on. I guess the Government keeps prosecuting a person until they get the verdict that they want regardless of what our Constitution and the Fifth Amendment states.

In the last week of April 2011, I read in the Daily News that John Alite, a major witness against John Gotti Jr. was sentenced to 10 years in prison. He has over six years in and two years left on that sentence. This man admitted to two gangland murders and a slew of other crimes committed over his lifespan. The 10 year sentence was his 'gift' from the Federal Government for cooperating, even though some jury members from the Gotti trial stated, " he was the least credible of all the witnesses."
I have to ask myself, "Is being tried all over again for the same crimes my 'gift' from the Federal Government for 'Refusing to Cooperate'?"

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Thank you.