United States of America v. Leon Burke

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0349P (6th Cir.)
File Name: 03a0349p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEON BURKE,
Defendant-Appellant.
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No. 02-5470
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 01-20191—Robert H. Cleland, District Judge.
Argued: August 6, 2003
Decided and Filed: October 1, 2003
Before: NORRIS, BATCHELDER, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: J. Patten Brown III, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Frederick H. Godwin, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: J. Patten Brown III, OFFICE OF THE
2 United States v. Burke No. 02-5470
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Frederick H. Godwin, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Defendant-Appellant Leon Burke
pleaded guilty to being a felon in possession of a weapon, in
violation of 18 U.S.C. § 922(g). He now appeals the
judgment against him and his sentence, arguing that the
district court erred by conducting a suppression hearing via
video-conferencing, by applying a four-level sentencing
enhancement under United States Sentencing Guidelines
(USSG) § 2K2.1(b)(5) for possessing a firearm in connection
with another felony offense, and by applying a two-level
enhancement for obstruction of justice, under USSG § 3C1.1.
Finding no merit to his claims, we affirm.
Facts
In September of 1996, Tennessee state officers were
investigating members of the Burke family, including two
brothers, Leon Burke (“Leon”) and Billy Burke (“Billy”).
Together the Burkes operated Burke’s General Auto Repair
(“Auto Shop”) in Memphis. The officers suspected that they
were stealing cars, taking them to the Auto Shop, installing in
the stolen cars the vehicle identification number (“VIN”)
plates from junked cars the Burkes purchased inexpensively
at Memphis Police Department (“MPD”) salvage auctions,
and reselling the cars to innocent buyers. This process of
exchanging the VIN plates of wrecked cars for those of stolen
cars is known as “flipping.”
The officers obtained a search warrant for the Auto Shop,
located at 3338 Weaver Road, and for the adjacent house that

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No. 02-5470 United States v. Burke 3
Leon and Billy lived in, at 3340 Weaver Road. Inside the
house they found various items that incriminated the brothers.
Stowed between a refrigerator and the wall was an SKS
Norinco 7.62 x 39 millimeter military assault rifle, with a 30-
round banana clip magazine that held six live rounds. In a
metal wall-locker in a bedroom they found a fully loaded .44
magnum Astra revolver, an unloaded Browning .22 caliber
rifle, and a 12-gauge Mossberg pump shotgun that contained
six live rounds in the magazine and one spent round in the
chamber. The shotgun was noteworthy because, like a police
assault shotgun, its shoulder-stock had been removed and a
pistol grip added, so the gun could only be fired like a two-
handed pistol. Also in the metal locker were four VIN plates,
an envelope that said “84 Olds” and had “Leon Burke”
stamped on a corner and contained a fifth VIN plate, ten
applications for certificates of title, and other documents
having to do with vehicle titles. Elsewhere in the house they
found a book explaining how to modify certain guns to make
them fully automatic, and another book describing how to
make functional silencers. Behind the house, in a trailer, the
officers found four more firearms. And scattered around the
property were pieces of cars and stripped car bodies, some of
which were pierced with bullet holes.
Four days after the search, Sergeant Farris McCarthy, the
officer who had led the search, drove to the home of Jimmy
Burke (“Jimmy”), another brother of Leon. McCarthy was
interested in Jimmy because Jimmy held the title to a car
bearing the VIN of a certain 1980 Chevrolet Impala that Leon
had bought at a MPD auction, and McCarthy suspected that
Jimmy’s car was actually a stolen 1980 Impala into which
Leon had installed the auctioned-car’s VIN. McCarthy drove
past Jimmy’s house and saw the Impala in question parked
out front, but instead of going in by himself he parked down
the street and called for some uniformed officers to support
him. When the uniformed officers arrived, however, the car
was gone. The officers questioned Jimmy, who explained
that he had bought the car from Leon, and that Leon had
appeared at his house that morning and told him that he
4 United States v. Burke No. 02-5470
should move the car somewhere else because police were
trying to track down all cars bearing the VINs of cars Leon
had bought at MPD auctions. Jimmy also told the officers
where he and Leon had parked the car, and there they found
it—stolen and with the VIN flipped, as expected.
The following year, Tennessee convicted Leon of theft of
property worth over $500, and he was sentenced to two three-
year sentences, to run concurrently. Leon served his sentence
and was released. Federal authorities then indicted Leon for
being a felon in possession of a weapon, and both Leon and
Billy for conspiring to tamper with VIN numbers and steal
cars, and for actually tampering with VINs on several
occasions in violation of 18 U.S.C. § 511(a).
After the federal proceedings commenced, Leon
(hereinafter “Burke”) filed a motion to suppress the evidence
seized at his house, arguing that the search had been
unconstitutional for various reasons. A hearing was
scheduled, but because there was a severe shortage of judges
in the Western District of Tennessee just then, it was arranged
that Judge Robert Cleland of the Eastern District of Michigan
would hear the case as a visiting judge. Prior to the hearing,
Judge Cleland notified the parties that he would be presiding
over the case from Michigan, participating in the proceedings
via live two-way video, with a two-way audio feed so he
could hear the parties and also talk to them, and everything
else would be normal, with the parties and witnesses together
in the court room in Memphis. Burke’s counsel did not object
until the hearing itself was underway, at which time he argued
that the use of video violated what was then Rule 26 of the
Federal Rules of Criminal Procedure, which provides that
“[i]n all trials the testimony of witnesses shall be taken orally
in open court.” After discussing the objection, Judge Cleland
denied it, and went on to deny the motion to suppress as well.
Burke thereafter entered into a Rule 11 plea agreement
under which he agreed to plead guilty to the felon in
possession charge, and the government agreed to drop the

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No. 02-5470 United States v. Burke 5
other charges against him. The agreement additionally
provided that Burke could appeal the adverse suppression
finding.
Judge Cleland held a sentencing hearing, in person this
time. He applied a four-level enhancement pursuant to USSG
§ 2K2.1(b)(5) for possessing a firearm in connection with
another felony (i.e., in connection with VIN flipping), a two-
level enhancement pursuant to USSG § 3C1.1 for obstructing
justice by telling Jimmy to move his car, and a three-level
reduction for accepting responsibility, but he denied Burke’s
request for a downward departure. In the end, he sentenced
Burke to the bottom of the Guidelines range: 78 months, plus
three years of supervised release. Burke now appeals.
Analysis
I. The Propriety of Holding the Suppression Hearing Via
Video-Conference
Burke argues that the judgment in this case should be
reversed and the case remanded for resentencing because the
district court’s use of video-conferencing violated Rules 26
and 43 of the Federal Rules of Criminal Procedure, and
because it violated constitutional due process. The arguments
are without merit.
At the outset, we note that at Burke’s video-conferenced
suppression hearing, his counsel objected solely on the basis
of Rule 26, and he did not mention Rule 43 or the
Constitution. Consequently, we review his Rule 43 and
constitutional arguments only for plain error. See Rule 52(b);
United States v. Crouch, 288 F.3d 907, 909 (6th Cir. 2002).
To prevail on these claims, Burke must show “(1) that an
error occurred in the district court; (2) that the error was plain,
i.e., obvious or clear; (3) that the error affected his substantial
rights; and (4) that this adverse impact seriously affected the
fairness, integrity or public reputation of his suppression
hearing.” United States v. Koeberlein, 161 F.3d 946, 949 (6th
6 United States v. Burke No. 02-5470
1This version of Rule 43 was revised in December 200 2, when the
Advisory Committee changed the rules to provide explicitly for video-
conferencing in initial appearances and arraignments. See Rule 5 (f)
(2003) (providing that for initial appearances, “[v]ideo teleconferencing
may be used to conduct an appearance unde r this rule if the defendant
consents”); Rule 1 0(c) (2003) (“Vid eo teleconferencing may b e used to
arraign a defendant if the defendant consents.”); Rule 43(a) (2003)
(“Unless . . . Rule 5, or Rule 1 0 provides otherwise, the defendant must
be present . . . .”).
Cir. 1998). In evaluating Burke’s Rule 26 claim, which he
did timely raise, we review the district court de novo, because
the claim concerns a matter of law. See United States v.
Roman-Zarate, 115 F.3d 778, 781 (10th Cir. 1997)
(“Interpretation of the Federal Rules of Criminal Procedure is
a legal issue subject to de novo review.”).
A. Rule 43
We begin our analysis with Rule 43, because this is where
Burke concentrates his argument on appeal, and because it is
under this rule that most cases involving video-conferencing
have arisen. At the time of Burke’s hearing, Rule 43(a)
provided that “[t]he defendant shall be present at the
arraignment, at the time of the plea, at every stage of the trial
including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as otherwise
provided by this rule.”1 Burke’s argument fails because the
rule does not extend to pre-trial motions.
Four Courts of Appeals have held that video-conferencing
in the context of a proceeding that is covered by Rule 43 does
not satisfy the rule’s requirement that the defendant be
“present.” See United States v. Torres-Palma, 290 F.3d 1244,
1248 (10th Cir. 2002) (holding that video-conferencing at
sentencing violated Rule 43); United States v. Lawrence, 248
F.3d 300, 303–04 (4th Cir. 2001) (same); United States v.
Navarro, 169 F.3d 228, 235–39 (5th Cir. 1999) (same);
Valenzuela-Gonzalez v. United States Dist. Court for Dist. of

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No. 02-5470 United States v. Burke 7
2These decisions rely primarily upon the plain, common-sense,
dictionary meaning of “prese nt” as “physical existence in the same place
as whatever act is done there.” Navarro, 169 F.3d at 236; see also
Torres-Palma, 290 F.3d at 1247 (agreeing with Navarro’s analysis);
Lawrence, 248 F.3d at 303 (“[D]ictionaries confirm that presence means
physical presence.”); Valenzuela-Gonzalez, 915 F.2d at 128 1 (“[W ]e hold
that the plain language of the rules must be followed.”). These decisions
have also relied on four other factors to support their interpretation: (1)
the Confrontation C lause ge nerally requires that a defendant be able
physically to confront the witnesses against him, and Rule 4 3’s
protections—mo re extensive than those of the Confrontation Clause—are
nonetheless given context by that Clause, see Navarro, 169 F.3d at
236–37; (2) Rule 43 (b)(3 ) notes that the defendant can be physically
excluded from “the courtroo m” for being disrup tive, and for this to
happen it must be the case that the defendant initially had the right to be
physically present in “the courtroom,” see id.; Lawrence, 248 F.3d at
303–04; (3) various passages from the Advisory Committee Notes to Rule
43 evidence that “presence” means “physical presence,” see Navarro, 169
F.3d at 237–39 ; and (4) television is not the same thing as physical
presence, see Lawrence, 248 F.3d at 304 (“[V ]irtual reality is rarely a
substitute for actual presence and . . . even in an age of advancing
techno logy, watching an event on the screen remains less than the
com plete equivalent of actually attending it.”). In contrast, Judge Politz,
dissenting on this point in Navarro, argues that “present” for Rule 43
purposes should be given the alternative dictionary meaning of “within
sight or call” and that such a de finition would “giv[e] appropriate effect
to the clear intent of Rule 2 . . . directing us to construe the Rules so as to
eliminate unjustifiable expense and delay[.]” 169 F.3d at 240.
Ariz., 915 F.2d 1276, 1280 (9th Cir. 1990) (finding a violation
where video-conferencing was used in an arraignment, based
on a combination of Rule 10’s requirement that arraignments
be held in “open court” and Rule 43’s requirement that the
defendant be “present”). But see Navarro, 169 F.3d at
240–41 (Politz, J., dissenting) (arguing that Rule 43 permits
sentencing by video-conference).2
But Rule 43 does not apply to Burke’s suppression hearing.
By its text, the rule applies through “every stage of the trial”
beginning with the impaneling of the jury, and it applies to
only two pre-trial events—the arraignment and the plea.
Consequently, the only way Burke’s pre-trial suppression
8 United States v. Burke No. 02-5470
3Burke’s counsel argues that under Rule 43, a defendant has the right
to be present not only at “every stage of the trial,” as Rule 43 provides,
but also at every “critical stage” of the judicial pro ceedings taken as a
whole. Support for this conclusion is found in dictum in United States v.
Johnson, 859 F.2d 1 289 (7th Cir. 1988). In Johnson, which was a Rule
43 case challenging the defendant’s absence from a suppression hearing,
the court noted that “[t]he parties do not dispute that an accused person
has a right to b e present at every critical stage of a criminal proceeding
against him and that a pretrial suppression hearing is a critical stage.” Id.
at 1294. The court, then, assumed that the suppression hearing was a part
of the “trial” for purposes of Rule 43, because it was a “critical stage,” but
went on to hold that the exception to Rule 43 for a “ conference or
argument upon a question of law” applied. Id. at 1294–95. W e disagree
with the “critical stage” d ictum, ho wever. Though the right to have
counsel present depends upon whether a judicial proceeding is a “critical
stage,” see, e.g ., Coleman v. Alabama, 399 U.S. 1, 7 (197 0), this standard
does not ap ply to Rule 43 beca use Rule 43 sets out its own, different,
standard: the defendant has the right to be present at “every stage of the
trial.” Further, we know of no other Rule 43 cases that employ the
“critical stage” standard.
hearing could be covered by Rule 43 is if the hearing
somehow qualified as a “stage of the trial.”3
The background of Rule 43 makes it clear that a pre-trial
motion hearing is not a “stage of the trial.” The Advisory
Committee Notes to the 1944 adoption of Rule 43 explained
that “[t]he first sentence of the rule setting forth the necessity
of the defendant’s presence at arraignment and trial is a
restatement of existing law.” Rule 43, 1944 Advisory
Committee Notes, ¶1 (citing Lewis v. United States, 146 U.S.
370 (1892), and Diaz v. United States, 223 U.S. 442 (1912)).
The Notes added, next, that “[t]his principle does not apply to
hearings on motions made prior to or after trial.” Id.
(emphasis added) (citing United States v. Lynch, 132 F.2d 111
(2d Cir. 1942)).
An investigation into this “existing law” that the rule
codified reveals, predictably enough, that “trial” denoted the
time between the impaneling of the jury and the delivery of
the sentence. For example, in the Lewis case cited in the

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No. 02-5470 United States v. Burke 9
4See Diaz, 223 U.S. at 45 5 (“In cases of felony our courts, with
substantial acco rd, have regarded [the d efendant’s right to be present] as
extending to every stage of the trial, inclusive of the empaneling of the
jury and the reception of the verdict, and as being scarcely less important
to the accused than the right of trial itself.” (emp hasis ad ded )); Lynch, 132
F.2d at 113 (“We do not understand that the right of a defendant to be
present in court throughout his trial has ever been considered to embrace
a right to be present also at the argument of motions prior to trial or
subsequent to verd ict.”); see also Sny der v. Ma ssach usetts, 291 U.S. 97,
107 (1934) (noting “the distinction everywhere drawn between
proceedings at the trial and those before and after,” and observing that
“[m]any motions before trial are heard in the defendant’s absence, and
many motions after trial or in the prosecution of appeals”) (overruled on
other ground s, Malloy v. Hogan, 378 U.S. 1 (19 64)). See
gen erally Crosby v. United States, 506 U.S. 255, 259 (199 3) (discussing
the law that Rule 43 was meant to restate).
5See, e.g., United States v. Bradford, 237 F.3d 130 6, 13 09– 10 (11th
Cir. 2001) (noting that “every other circuit to address the issue” has “held
that a trial commences unde r Rule 43 when jury selection begins,” and
stating that “[a]fter reviewing this precedent from other circuits, we find
their reasoning compelling and conclude that, for purposes of Rule
Notes, the Supreme Court reversed a death sentence for
murder where the defendant had not been allowed to be
present in court during preliminary challenges to the jury.
See 146 U.S. at 372–73. The Court relied upon and quoted
from Hopt v. Utah, 110 U.S. 574 (1884), which rejected a
government argument that the trial did not begin until the jury
was sworn in, and which instead held that “where the
indictment is for a felony, the trial commences at least from
the time when the work of empanelling the jury begins.”
Hopt, 110 U.S. at 578; see also Lewis, 146 U.S. at 373-74.
The Lewis case, then, which Rule 43 was built upon,
supported the proposition that the “trial” begins with jury
impaneling. This proposition is strengthened by the other
cases that the Notes cite.4
Cases handed down since the enactment of Rule 43 have
typically construed the word “trial” in a similarly restrictive
fashion.5 Though none of the cases cited so far dealt with
10 United States v. Burke No. 02-5470
43(b)(1) [the exception for a defendant’s voluntary absence after ‘trial has
commenced ’], a ‘trial has comm enced’ when the jury selection pro cess
has begun”); United States v. Krout, 56 F.3d 643, 646 (5th Cir. 1995)
(finding for the same purpose that trial begins with jury selection and
noting that “our research[] does not reveal a contrary interpretation of the
Rule”); see also Ganne tt Co. v. DeP asquale, 443 U.S. 368, 394 (1979)
(Burger, C.J., concurring) (“By d efinition, a hearing on a motion before
trial to suppress evidence is not a trial; it is a pretrial hearing.”) (emph asis
omitted).
6See, e.g., United States v. Pepe, 747 F.2d 63 2, 653 (11th Cir. 1984)
(“The first advisory committee note shows clearly that proceedings such
as [pretrial hearings to determine the admissibility of the evidence the
government intends to offer at trial] do not fall into the Rule 43 catch-all,
‘every stage of the trial.’”); Taylor v. United States, 385 F.2d 835, 836
(8th Cir. 1967) (in which the defendant complained that Rule 43 had been
violated because he had not been present at several preliminary motions
disposed of prior to commencement of trial, and the court responded that
“it is doubtful whether such motions co nstitute a part of defendant’s
trial”).
7See, e.g., United States v. Boyd, 131 F.3d 951, 953 n.3 (11th Cir.
1997) (“It is clear that R ule 43 did no t entitle Boyd to attend the [po st-
trial] evidentiary hearing: The rule does not mention post-trial
proceedings, and in fact the Advisory Committee’s note to the original
enactment notes that the principle behind the rule ‘doe s not ap ply to
hearings on motions mad e prior to or after trial.’”); United States v.
Gradsky, 434 F.2d 8 80, 882 (5th Cir. 1970 ) (“The Sixth Amendment and
Fed.Rules Cr.Proc. 43 do guarantee a defendant the right to be present at
the arraignment and ‘at every stage of the trial.’ No appellate court has
extended this right to an evidentiary hearing.”).
proceedings held before the jury was impaneled, courts
considering such circumstances have consistently held that a
defendant’s absence does not violate Rule 43.6 This is true
even with respect to post-trial evidentiary hearings—in
proceedings, that is, where the Rule 43(c)(3) exception for
“when the proceeding involves only a conference or hearing
upon a question of law” did not apply.7
Overall, the authorities are nearly unanimous that Rule 43’s
right to be present does not apply to pre-trial suppression

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No. 02-5470 United States v. Burke 11
8Interestingly, the W right & Miller treatise d isagrees with this
conclusion, suggesting that Rule 43 should apply in such circumstances
desp ite the Ad visory C omm ittee’s 1944 note. See 3A W R IGHT ET AL.,
FEDERAL PRACTICE & PROCEDURE § 72 1.1; see also United States v. Da lli,
424 F.2d 45, 48 (2d Cir. 1970) (dictum citing W right & Miller for the
proposition that “a defendant has a right to be presen t at a suppression
hearing where testimony is to be taken,” but finding that the defendant
had waived this right). But the Wright & M iller treatise does not justify
its conclusion, except to state that “it would seem that defendant has a
right to be present,” and it cites no federal cases besides Da lli that adopt
such a holding.
hearings.8 Consequently, we conclude that Burke did not
enjoy Rule 43’s right to be “present,” and his Rule 43
challenge to the use of video-conferencing at those
proceedings must fail. In light of this conclusion, it is
unnecessary to proceed to harmless-error review, which
would otherwise be the next step. See, e.g., United States v.
Harris, 9 F.3d 493, 499 (6th Cir. 1993) (“As we previously
have held, the rule requiring a defendant’s presence at every
stage of the trial must be considered with Rule 52(a) of the
Federal Rules of Criminal Procedure, [which provides] that
harmless error is to be disregarded.”).
B. Rule 26
Rule 26 provides that “[i]n all trials the testimony of
witnesses shall be taken orally in open court, unless otherwise
provided[.]” We reject Burke’s contention that this rule
applied to his suppression hearing, and that the use of video-
conferencing violated the rule’s “open court” requirement.
Though Burke discussed Rule 26 at the suppression
hearing, on appeal he refers to Rule 26 only in his Summary
of Argument, and then only in a conclusory fashion.
See Burke Br. at 16 (“The defendant was not ‘present’ in
‘open court’ because the district court was absent from the
courtroom.”). We find, then, that he has forfeited this ground.
See Smoot v. United Transp. Union, 246 F.3d 633, 647 (6th
12 United States v. Burke No. 02-5470
Cir. 2001) (“This Court deems issues presented in a
perfunctory manner on appeal to have been waived.”).
Even if Burke had not forfeited this argument, we would
reject it on the merits. The only support for Burke’s
contention that the term “open court” precludes video-
conferencing is found in the Ninth Circuit’s
Valenzuela-Gonzalez case, in which the court partially based
its no-video-arraignment holding on Rule 10’s provision that
“[a]rraignment shall be conducted in open court.” 915 F.2d at
1280 (emphasis added). There is no need for us to consider
the persuasiveness of this reasoning, however, because Rule
26, like Rule 43, applies by its terms to “trials,” and Burke’s
suppression hearing was a pre-trial proceeding.
C. Constitutional Arguments
The use of video-conferencing at Burke’s suppression
hearing, moreover, did not violate Burke’s fair trial right to
have the judge “present.” Nor did it violate Burke’s
constitutional right to be “present” himself at trial. We will
consider these arguments in turn.
Burke relies upon his constitutional right to “have all
critical stages of a criminal trial conducted by a person with
jurisdiction to preside.” Gomez v. United States, 490 U.S.
858, 876 1989) (invalidating a magistrate’s conduct of jury
selection on statutory grounds and reversing the conviction
for that structural error). Burke analogizes his situation to
that in United States v. Mortimer, 161 F.3d 240 (3d Cir.
1998), in which the judge was unaccountably absent during
counsel’s summation and unable to consider an objection by
opposing counsel. Id. at 241. The Third Circuit found that
this was a structural error, reasoning that “[a] trial consists of
a contest between litigants before a judge. When the judge is
absent at a ‘critical stage’ the forum is destroyed.” Id.
It is true that courts have held that a judge’s actual absence
from certain phases of the trial can constitute a structural

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No. 02-5470 United States v. Burke 13
error, depriving a defendant of the right to a fair trial. But
Burke has failed to cite any cases establishing that this right
is violated where the judge is present through video-
conferencing, nor do we know of any. Indeed, United States
v. Kone, 307 F.3d 430 (6th Cir. 2002), a somewhat more
closely analogous case that involved the use of a
speakerphone, suggests that there was no violation in this
case. In Kone the trial judge needed to leave immediately for
a judicial conference, so he arranged for another federal
judge, in a different city, to handle jury questions that might
arise during deliberations and to receive the verdict and poll
the jurors via speakerphone. See id. at 441–42. Relying upon
a series of Second Circuit cases, this court distinguished
Mortimer and found no structural error, holding that “[t]his is
not the case of a judge who completely abdicated his judicial
responsibilities, as in Mortimer, but rather the case of a judge
who presided telephonically at important stages of the trial.”
Id. at 443.
Furthermore, whatever right Burke had to the presence of
the judge, this right is implicated to a lesser degree in a
suppression hearing than it is in an actual trial. See, e.g.,
United States v. Raddatz, 447 U.S. 667, 679 (1980) (“[T]he
process due at a suppression hearing may be less demanding
and elaborate than the protections accorded the defendant at
the trial itself.”). In this case the judge could see, hear, and
speak to the witnesses, and they could see, hear, and speak to
him. Though presence through a television is not the same
thing as direct physical presence, in this case the difference
between the two was not of constitutional dimension. The
judge’s presence via video-conferencing did not deprive
Burke of due process by rendering his suppression hearing
fundamentally unfair, and it did not constitute a structural
error.
Burke’s companion argument that the Constitution requires
the defendant to be present is largely based on the Sixth
Amendment Confrontation Clause, which guarantees that the
accused has the right “to be confronted with the witnesses
14 United States v. Burke No. 02-5470
against him.” See United States v. Gagnon, 470 U.S. 522,
526 (1985) (“The constitutional right to presence is rooted to
a large extent in the Confrontation Clause of the Sixth
Amendment[.]”). Of the various elements to the
confrontation right—“physical presence, oath,
cross-examination, and observation of demeanor by the trier
of fact”—physical presence, or a defendant’s right to confront
the witnesses against him face-to-face, forms “the core of the
values furthered” by the Clause. Maryland v. Craig, 497 U.S.
836, 846–47 (1990); see also Coy v. Iowa, 487 U.S. 1012,
1016 (1988) (finding a violation of the right to confront
witnesses where a screen was placed between the defendant
and two child witnesses in a child abuse case). But the
physical confrontation right is not absolute, and alternatives
such as video-confrontation may be acceptable where
“necessary to further an important policy.” See Craig, 497
U.S. at 852 (holding that “use of [a] one-way closed circuit
television procedure, where necessary to further an important
state interest, does not impinge upon the truth-seeking or
symbolic purposes of the Confrontation Clause”); see also
United States v. Bell, 464 F.2d 667, 672 (2d Cir. 1972)
(finding no Confrontation Clause violation where a defendant
was excluded from part of his suppression hearing while a
certain witness testified, a witness whose testimony the
government wanted to keep secret). Further, the Supreme
Court has repeatedly explained that “[t]he right to
confrontation is basically a trial right.” Barber v. Page, 390
U.S. 719, 725 (1968); see also Pennsylvania v. Ritchie, 480
U.S. 39, 52-53 (1987) (plurality opinion); California v.
Green, 399 U.S. 149, 157 (1970).
In this case, even ignoring the fact that the video-
conferencing was at a suppression hearing rather than during
a trial, Burke’s right to confront the witnesses against him
physically was not implicated. Unlike in cases where the
defendant is present only via video-conferencing, Burke was
in the courtroom, physically facing the witnesses, and it was
only the judge who was remote.

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No. 02-5470 United States v. Burke 15
The other constitutional foundation of the right of
defendant to be present is the Fifth Amendment Due Process
clause, and the Supreme Court has held that this clause
guarantees “that a defendant be allowed to be present ‘to the
extent that a fair and just hearing would be thwarted by his
absence[.]’” Kentucky v. Stincer, 482 U.S. 730, 745 (1987)
(quoting Snyder v. Massachusetts, 291 U.S. 97, 108 (1934));
see also id. at 745–46 (holding that due process guarantees
were not violated where a defendant was excluded from a
witness competency hearing, and noting that the hearing did
not concern the witnesses’ substantive testimony); Gagnon,
470 U.S. at 526 (“[W]e have recognized that [the] right [to be
present] is protected by the Due Process Clause in some
situations where the defendant is not actually confronting
witnesses or evidence against him.”); United States v. Brown,
571 F.2d 980, 986 (6th Cir. 1978) (“The Constitution only
grants to the criminal defendant the ‘right to be present at all
stages of the trial where his absence might frustrate the
fairness of the proceedings[.]’” (quoting Faretta v. California,
422 U.S. 806, 819 n. 15 (1975))). Here again, however, the
Court has held that “the process due at a suppression hearing
may be less demanding and elaborate than the protections
accorded the defendant at the trial itself.” Raddatz, 447 U.S.
at 679.
It is questionable whether Burke’s right to a fair and just
hearing would have been thwarted even had he been entirely
excluded from his suppression hearing. See, e.g., Yates v.
United States, 418 F.2d 1228, 1229 (6th Cir. 1969) (“It is . . .
claimed that the appellant’s constitutional rights were violated
because he was excluded from the hearing to suppress
evidence. We find no merit to this claim.”). Given that
Burke was physically present at the hearing, and it was only
the judge who was in any sense “absent,” Burke’s Fifth
Amendment right to be present was not violated. On this
constitutional ground, as in the other constitutional arguments
Burke asserts, the district court committed no error, let alone
plain error.
16 United States v. Burke No. 02-5470
II. The USSG § 2K2(b)(5) Enhancement for Use of A
Firearm in Connection With Another Felony Offense
We review for clear error the district court’s factual
findings, and accord “due deference” to the district court’s
determination that the USSG § 2K2.1(b)(5) enhancement
applies. See 18 U.S.C. § 3742(e); United States v. Ennenga,
263 F.3d 499, 502 (6th Cir. 2001). Section 2K2.1(b)(5)
instructs a court to increase a defendant’s felony offense by
four levels “[i]f the defendant used or possessed any firearm
or ammunition in connection with another felony offense[.]”
A court can apply this enhancement “only . . . if the
Government establishes by a preponderance of the evidence
that the defendant possessed or used a gun in connection with
another felony.” United States v. Hardin, 248 F.3d 489, 495
(6th Cir. 2001). The section “was created in response to a
concern about the increased risk of violence when firearms
are used or possessed during the commission of another
felony.” United States v. McDonald, 165 F.3d 1032, 1037
(6th Cir. 1999) (emphasis omitted).
In this case, the district court did not err in applying this
enhancement. The court found a sufficient connection
between the guns in Burke’s house and the VIN-flipping
operation based on a number of factors: Burke was running
the VIN-flipping operation from the Auto Shop, which was
located just across the driveway from the house; three of the
guns were found in the same metal cabinet that held detached
VIN numbers and other VIN-flipping evidence; the metal
cabinet was kept in the master bedroom, and people who have
significant contraband tend to keep such things in their
bedrooms; Burke’s VIN-flipping business appears to have
been his chief source of income during this time; some of the
weapons were loaded, and one had been discharged; and the
Mossberg shotgun had been modified to make it more like an
assault weapon. On the basis of this evidence, the judge
concluded that “[i]t is abundantly clear to me far beyond any
preponderance of the evidence that these firearms were

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No. 02-5470 United States v. Burke 17
possessed in connection with another felony offense,
specifically, auto theft and VIN-flipping[.]”
In making its finding, the judge also found that the “fortress
theory” applied at least to some extent, even though no drugs
were involved here. This theory originated in cases involving
18 U.S.C. § 924(c)(1), which provision penalizes anyone
who, “during and in relation to any crime of violence or drug
trafficking crime[,] . . . uses or carries a firearm.” The theory
was a means for courts to find that a defendant “used” a
firearm, even where there was no evidence that the defendant
had fired, brandished, or even picked up the weapon. See
United States v. Grant, 545 F.2d 1309, 1312 (2d Cir. 1976)
(finding “use,” based on the fact that the social club that
housed the defendants’ drug operation was a “veritable
fortress”); see also United States v. Henry, 878 F.2d 937, 944
(6th Cir. 1989) (“[I]f it reasonably appears that the firearms
found on the premises controlled or owned by a defendant
and in his actual or constructive possession are to be used to
protect the drugs or otherwise facilitate a drug transaction,
then such firearms are used ‘during and in relation to’ a drug
trafficking crime.” (quoting 18 U.S.C. § 924(c)(1))). Though
the Supreme Court has curtailed the theory in relation to
§ 924(c)(1) by holding that the term “use” in § 924(c)(1)
means “active employment” and not merely possession, see
Bailey v. United States, 516 U.S. 137, 150 (1995), the theory
is still applicable in § 2K2.1(b)(5) cases because the latter
provision contains the additional word “possessed.” See
United States v. Covert, 117 F.3d 940, 947–48 (6th Cir. 1997)
(holding that the theory continues to apply under
§ 2K2.1(b)(5) post-Bailey).
A difficulty in applying the theory in the present case is that
it normally comes into play where drugs are involved, and
there were no drugs here. Burke argues that this difficulty
means that the theory is inoperative, and the enhancement
was therefore improper. The government argues that the
theory should be extended into non-drug cases. In our
opinion, however, the more sensible course is to forgo any
18 United States v. Burke No. 02-5470
reliance on the theory in this case and adhere to the text of
§ 2K2.1(b)(5), simply asking whether the government met its
burden of showing that “the defendant . . . possessed any
firearm or ammunition in connection with another felony
offense,” and remembering that possession can be actual or
constructive. See Covert, 117 F.3d at 948. The fortress
theory played a role in relation to § 924(c)(1) because in that
context there was a leap to be made: using a weapon is
different from merely possessing one, and the theory
permitted courts to infer use from possession. But the theory
is less useful where § 2K2.1(b)(5) is concerned, because
§ 2K2.1(b)(5) already says “possession,” and there is no leap
to be made; rather, the government must merely establish a
factual connection by a preponderance of the evidence.
Further, in the present case the theory has only introduced
confusion, inciting the parties to argue about the meaning and
extension of the theory, and diverting attention from the real
question, whether § 2K2.1(b)(5) itself has been satisfied.
Based on the above-noted evidence relied upon by the
district court, we find that the court did not clearly err in
concluding that Burke’s possession of the various firearms in
his house was connected with his VIN-flipping operation.
Unlike where drugs are involved, there is no widely
acknowledged consensus that VIN-flipping is a dangerous
activity that frequently involves guns. Nevertheless, the guns
and the VIN paraphernalia were found in close proximity, the
illegal operation could have been protected by guns (e.g., to
fend off disgruntled car buyers, to deter thieves, and to defend
the operation from the police), and overall there was
sufficient evidence for the district court reasonably to
conclude that the guns and the operation were connected.
III. The USSG § 3C1.1 Enhancement for Obstruction of
Justice
We also uphold the district court’s sentencing enhancement
for obstruction of justice, based on Burke’s having told
Jimmy to move a car so that the police would not find

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No. 02-5470 United States v. Burke 19
9The present version provid es that
[i]f (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the course of the investigation, prosecution, or sentencing
of the instant offense of conviction, and (B) the obstructive
conduct related to (i) the defendant’s offense of conviction and
any relevant conduct; or (ii) a closely related offense, increase
the offense level by 2 levels.
evidence of VIN-flipping. Insofar as the district court made
factual determinations in finding that the USSG § 3C1.1
enhancement applied to Burke, we review for clear error. See
United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th
Cir. 2002). Insofar as the court’s interpretation of the
Guidelines was purely legal, we review de novo. See United
States v. Canestraro, 282 F.3d 427, 431 (6th Cir. 2002).
Though § 3C1.1was substantially amended in 1998, the
pre-amendment version of the guideline applied at Burke’s
sentencing. It provided that “[i]f the defendant willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the investigation,
prosecution, or sentencing of the instant offense, increase the
offense level by 2 levels.” USSG § 3C1.1 (1995); see also
id., cmt. n.3 (listing, as an example of obstructive conduct,
“procuring another person to . . . conceal evidence that is
material to an official investigation or judicial proceeding”).
In the 1990s, a circuit split developed over whether “instant
offense” referred to obstruction in both the defendant’s case
and in other cases closely related to the defendant’s case—so
that the enhancement would apply if the defendant obstructed
justice in a co-defendant’s case, see, e.g., United States v.
Acuna, 9 F.3d 1442, 1446 (9th Cir. 1993)—or whether
“instant offense” meant “offense of conviction,” so that the
enhancement would apply only where the obstruction
specifically related to the offense for which the defendant was
convicted. The Sentencing Commission in 1998 resolved the
split in favor of the former position.9 See USSG Supp. to
20 United States v. Burke No. 02-5470
USSG § 3C1.1 (20 02).
10Horry was also limited in United States v. Walker, 119 F.3d 403
(6th Cir. 1997), a case that the Sentencing Commission would later cite
as an example of the view adopted in the amended § 3C 1.1. See USSG
Supp. to Appendix C, Amend. 581. In Walker the defendant, Mr. Walker,
was indicted along with a co-defendant for consp iring to distribute
cocaine and for possessing a gun in connection with the conspiracy. 119
F.3d at 405. W hen they were arrested they were together at W alker’s
apartment, with some drugs sitting on the table; Walker pointed a pistol
at the officers and, in self-defense, they opened fire. Id. Walker survived,
and after he pleaded guilty he falsely testified at his co-defendant’s trial
that the co-defendant had nothing to do with the drugs and that Walker
had not po inted the gun at the police but instead had d ropped it. Id.
W alker received a § 3C1.1 enhancement on the basis of his perjured
testimony, and on appeal he argued that his perjury could not have been
during the “instant offense” because he did it after he had pleaded guilty.
Id. at 406. We rejected this argument, holding that the enhancement can
app ly in a separate but related proceeding, and finding that it did apply
because “defendant and code fendant were inextricably related in the
criminal offenses charged against both.” Id. at 406–07.
Appendix C, Amend. 581 (setting out the amendment, and
explaining the rationale). Prior to that time, however, the
circuits adopted one position or the other.
This court has tipped its hat to both sides of the split. In
United States v. Horry, 49 F.3d 1178 (6th Cir. 1995), we held
that the term “instant offense” in § 3C1.1 required that “the
obstruction must occur solely with respect to the offense of
conviction.” Id. at 1180–81. Subsequently, however, in
United States v. Nesbitt, 90 F.3d 164 (6th Cir. 1996), we held
that the enhancement could be upheld if the evidence of
obstruction of justice is “sufficiently related” to the offense of
conviction.10
In Nesbitt, the defendant had been convicted of money
laundering for using drug proceeds to purchase a Mercedes
Benz and having it titled in the name of his girlfriend. Id. at
168. In a related charge that was dropped pursuant to a plea

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No. 02-5470 United States v. Burke 21
11Burke also argues that a more recent pre-am endment case, United
States v. Koeberlein, 161 F.3d 946 (6th Cir. 1998), reaffirmed Horry’s
narrow “offense of conviction” requirement. In Koeberlein the defendant,
Mr. Koeberlein, was convicted for stealing a rented front-end loader. 161
F.3d at 948. The district court applied the § 3C1.1 enhancem ent because
Ko eberlein— in incidents that happened prior to the front-end loader
theft—had failed to appear in state court for prosecutions of similar thefts,
and had evaded officers who were pursuing him for one of these thefts.
See id. at 950–51. Koeberlein appealed, arguing that “although he had
missed court dates related to state prosecutions, he did not fail to appear
for any proceedings related to the instant offense, which is what the
Sentencing Guideline’s language contemplates.” Id. at 951. We agreed,
finding that the obstructive conduct had to have occurred no sooner than
the investigation of the offense of co nviction, and since K oeb erlein’s
conduct had occurred prior to his front-end loader theft, the district court
erred. See 161 F.3d at 95 1. Though in the cour se of this holding we
bargain, the defendant was charged with using drug money to
purchase a different Mercedes that he registered in his aunt’s
name. Id. The district court granted an obstruction
enhancement, based on the defendant’s alleged perjury (and
his instructions to his aunt to commit perjury) at a civil
forfeiture proceeding regarding the second Mercedes. Id. On
appeal, the defendant argued that the district court had
violated Horry, because the forfeiture proceeding in which he
committed his obstructive conduct was not his “offense of
conviction.” Id. at 168–69. This court rejected his argument,
and distinguished Horry:
unlike the Horry case, [the defendant’s] behavior in
relation to the [dismissed] charge should not be viewed
as collateral conduct irrelevant to the “instant offense.”
Instead, this conduct was related to the “instant offense”
in that it was intended to impede the same government
investigation that eventually resulted in [the defendant’s]
plea bargain and conviction.
Id. at 169 (emphasis added).
The district court in this case properly relied upon our
holding in Nesbitt.11 Burke’s action was intended to impede
22 United States v. Burke No. 02-5470
quoted Horry’s rule—that “the obstruction must occur solely with respect
to the offense of conviction,” id. (quoting Ho rry, 49 F.3d at
118 0–8 1)— this did not mean that we were thereby changing the position
we adopted in Nesb itt and Walker, that obstruction applies both to the
offense of conviction and to related conduct. Rather, Koeberlein merely
reaffirmed something that we had established prior to Horry, and that we
reaffirmed in Nesb itt: that “related conduct” must be conduct that
occurred “during the investigation, prosecution, and sentencing of the
instant offense[.]” Koeberlein, 161 F.3d at 95 1 (quoting United States v.
Crou sore, 1 F.3d 382, 384 (6th Cir. 1993)); see also Nesbitt, 90 F.3d at
169. Consequently, Koeberlein does not make generally applicable the
restrictive “offense of conviction” rule from Horry that subsequent cases
limited. See Walker, 119 F.3d at 407 (distinguishing Horry, and holding
that “this circuit has given a broad reading to the ‘instant offense’
language”).
12This conc lusion is suppo rted by our decision in Walker. See
footnote 10, supra.
the same government investigation that eventually resulted in
Burke’s plea bargain and conviction. It was clearly related to
the VIN-flipping charge that the government dropped against
Burke as part of the plea bargain. It was, moreover, related to
the VIN-flipping charge that Burke’s co-defendant, his
brother Billy, was convicted of.12
We recognize that the gun possession and VIN-flipping in
this case are not as obviously related as the criminal money-
laundering and civil forfeiture cases in Nesbitt. Indeed, the
district court in this case indicated that it would take the
marginal nature of the connection into account in determining
where to sentence within the guidelines range. And we do not
hold that proceedings resulting from the same government
investigation will in all circumstances be related for purposes
of applying the pre-amendment version of § 3C1.1. But here,
as indicated in the previous section, the district court
reasonably found a connection between the weapons and the
VIN-flipping activity. The weapons charge grew directly out
of the VIN-flipping investigation. The guilty plea on the
weapons charge was based in part on dismissal of the VIN-

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No. 02-5470 United States v. Burke 23
flipping charge. And a co-defendant was convicted on a VIN-
flipping charge. In the presence of these factors, the holding
of Nesbitt permits our conclusion that the district court
properly applied the obstruction enhancement.
Conclusion
For the foregoing reasons, we AFFIRM the judgment and
the sentence of the district court.

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