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Lawyer: Wheeler sex convictions could be at risk

By Eric Fleischauer · 340-2435

The validity of convictions and plea agreements arising out of a July 2006 undercover operation at Wheeler National Wildlife Refuge could hinge on a state Supreme Court decision, according to a lawyer for a Decatur defendant.

Huntsville lawyer Bruce Gardner, representing Julian Burnett, argued in Huntsville federal court Monday that the document charging his client failed to allege a central element of the crime of indecent exposure: lack of consent.

Because it involves a state statute, U.S. District Judge U.W. Clemon said he would submit the question of whether non-consent is a central element of the crime of indecent exposure to the state Supreme Court.

The appeal

The issue came up in connection with Burnett’s appeal of his federal jury conviction in February for indecent exposure and public lewdness, both misdemeanors.

The appeal went to a federal district judge because a federal magistrate presided over the jury trial. Burnett was sentenced in April to six months in prison, but he is out of jail pending appeal.

Burnett and 26 others were charged with sex offenses during a four-day undercover operation conducted by the U.S. Fish and Wildlife Service.

The government accused them of lewd conduct directed at a male agent on assignment from Georgia, where he previously had conducted similar operations.

Most of the defendants have been convicted, or have pleaded guilty, to indecent exposure.

“The statute says what it says,” Gardner said Tuesday. “Lack of consent is an element of the crime. Not only must the defendant be charged on it, but he’s entitled to have a jury instruction on whether or not the victim consented.”

The U.S. could refile charges if the court determines the original charges were defective.

“If they say lack of consent is an element,” Gardner said, “I think every one of the convictions on appeal is overturned. (The government) didn’t plead it or prove it, and the jury was not instructed on it.”

Gardner said the lack-of-consent element is fatal to convictions arising from the Wheeler sting operation because the agent was soliciting lewd conduct.

“That’s what he was out there to do,” Gardner said.

Gardner said a favorable state Supreme Court opinion would affect not only those defendants whom a jury convicted, but also those who pleaded guilty.

“If the Supreme Court says lack of consent is a necessary element, everybody who pled guilty to indecent exposure, in my view, would be entitled to attack their plea,” Gardner said.

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