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Federal charge alleging former Catholic school principal produced child porn dismissed
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Federal charge alleging former Catholic school principal produced child porn dismissed

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A U.S. District Court judge Wednesday dismissed a federal charge of producing child pornography against a former principal of Catholic schools in Beatrice and Omaha.

The ruling, in the case against Marlan Burki, 62, dismisses the charge “without prejudice,” which means prosecutors could refile it at a later date.

The motion, filed Wednesday, cites a federal statute that gives the government “30 days from the date a person was arrested” to file an indictment, saying prosecutors need more time to complete an investigation into the matter, including analysis of locked electronic devices and digital evidence.

Former principal is not John Doe 42 and should be released while case pending, attorney says

Burki had been charged criminally, though the case was sealed. In federal cases, prosecutors can seek an indictment on top of the criminal charge, but don’t have to do so.

Burki’s attorney, Steve Lefler, said he hoped Burki would be released from a federal facility in Leavenworth, Kansas, on Wednesday evening.

“I’m just thrilled not only for my client and for his family, but I’m thrilled for all Nebraskans,” Lefler said. “Mr. Burki should not have been arrested, and Mr. Burki should not have gone through this, be in jail.”

FBI asks for help identifying man who may know child being sexually exploited

Lefler has argued that the charge against his client was a case of mistaken identity — that he is not the man identified as John Doe 42 in a wanted poster distributed nationwide by the FBI.

During a detention hearing last week, Assistant U.S. Attorney Tessie Smith said five teachers at St. Joseph Catholic School in Beatrice, where Burki was principal last year, saw the photos and brought it to the attention of current school officials because they thought it was him.

Both the current principal and a police officer identified the man photographed as Burki, and two other teachers identified a short audio clip as being Burki. Two teachers at All Saints School in Omaha, where he’d been principal for 13 years prior to taking the job in Beatrice, also identified the picture as Burki.

Former Catholic schools principal detained on child porn production charge while case pending

Sarpy County Sheriff Jeffrey Davis, called to testify by Lefler, said he’d known Burki for 20 years and the photo in the wanted poster was not him.

Since the hearing, Lefler said, he’s gotten “dozens of letters” from people from the schools in support of Burki.

“I’m convinced as I can be, realizing I’m as fallible as the next person, that it’s just not him.”

FBI agents arrested Burki at his home near Tecumseh on Oct. 1 and seized electronic devices, which are being analyzed, and the photos have been sent to experts to determine whether they’re the same person.

Lefler argued at the detention hearing that it typically takes months to do such analysis and that it was unfair to keep his client in custody during that process.

U.S. District Judge Cheryl Zwart was unconvinced and initially ruled that, based on a “substantial resemblance” between Burki and the photo on the wanted poster and evidence presented in an affidavit, he should be detained while the case is pending.

“This has been a frustrating case to work on because it can happen to any citizen,” Lefler said. “It looks like you, so we’re going to arrest you. It’s a very chilling event.”

The U.S. Attorney's Office in Nebraska declined comment.

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Reach the writer at 402-473-7226 or mreist@journalstar.com.

On Twitter @LJSreist

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Education reporter

Margaret Reist is a Lincoln native, the mom of three high school graduates now navigating college and an education junkie who covers students, teachers and policymakers inside and outside the K-12 classroom.

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